Wilson v. Glover , 1846 Pa. LEXIS 135 ( 1846 )

Sergeant, J.

The utmost that can be made out of the defendant’s case, seems to be, that in consequence of the dissatisfaction of Spieglemoyer, one of the sureties, and his desire expressed to some of the county commissioners, that they should proceed on the bond against Andrew Glover, it was agreed by them with William Glover and Spieglemoyer, (hat Spieglemoyer should go clear or be discharged, and that William Glover should be taken as surety in place of him and John Glover, the defendant. Supposing such agreement sufficiently made out and valid, yet it is a fatal objection to it, that it never was carried into execution. Nothing more was ever done upon it on either side. William Glover did not execute a bond for the faithful discharge of duty by Andrew Glover in pursuance of this agreement, and therefore it cannot be considered as any thing more than an inchoate or incomplete arrangement, never carried into effect. To obtain any advantage from it, it was the duty of William Glover and of the sureties to see that such bond was given. The county commissioners are public officers; the nature of their duties is prescribed by law; and all persons dealing with them are bound to take notice of the law and conform to it; and the public are not to suffer by the neglect of parties interested, or of the public officers, to perform their duty. The acts of Assembly require the county commissioners to take from the collector and his sureties a bond, with warrant of attorney, or mortgage; unless the collector is a freeholder. They nowhere authorize a security by oral promise or undertaking, such as is set up here; and as the only security which William Glover could give in lieu of the former, and which the commissioners were authorized to take, was a bond, in the terms and conditions which the law requires, the only construction that we can give to the conversations referred to, is an agreement by William Glover to give a good and sufficient bond of the kind prescribed by law, in lieu of the existing one; and this the parties altogether omitted to procure. As they did not fulfil the agreement on their part, they have no reason to call on the county to fulfil it on the other part. In addition to which, it is proper to say, that no discharge in writing appears to have been given by the commissioners, and no record or entry was made in their books on the subject. Such loose and careless modes of doing business by public officers cannot be too strongly and severely censured. The act of 15th April, 1834, sec. 20, with a view to the public security in matters in which the public interest is so much concerned, recognises a board as the legal body, and requires the county commissioners to appoint a clerk to keep the books and accounts of the board, to record and file their proceedings; and sec. 21 makes copies thereof evidence. Certainly all the proceedings of the board of commissioners, especially relating to matters of such vital importance as their fiscal concerns, and to the security to be given by collectors through whose hands pass nearly all the moneys of the county, in relation to which the enactments of the laws are so anxious and so particular, ought to be evidenced by an entry on their books and records, and not left to the oral conversations held loosely with one or two of the members in a corner, in the hurry often of other matters, not done with the solemnity of a board, nor entered on their records. In Kleckner v. County of Lehigh, 5 Watts & Serg. 181, it was decided by this court, that the county could not be sued for the price of building a bridge, upon the verbal promises of the county commissioners : the acts of Assembly having prescribed a mode in which the building of bridges is to be constructed, which the party concerned must see is conformed to. So in the present instance, (he proper mode of taking security from collectors is specially prescribed by act of Assembly, and the commissioners have no power to pass, over the prescribed method, and adopt another of a vastly inferior character in every respect. At any rate, the parties interested were bound by their agreement to go further, and procure a new bond to be executed by the proposed surety, William Glover; and not having done so, the former parties were not released.

As to the- notice to push, it is sufficient to say, in the first place, it was not given in the terms prescribed by the rule of law on that Subject; and further, that this was afterwards merged in the special agreement that William Glover should become a new surety. So that the latter is the only question in the cause; and in regard to it, we think the court erred, in holding there was any thing done by which the parties could in law be discharged.

Judgment reversed, and venire facias de novo awarded.