Silverthorn v. Hollister , 1878 Pa. LEXIS 191 ( 1878 )

Mr. Justice

delivered the opinion of the court,

The bond upon which the judgment which is the subject of this contention was entered, was given to indemnify the county of Erie for the expense of keeping Martha Hollister, a lunatic, and the wife of one of the obligors, at the Western Pennsylvania Hospital for the Insane. The penalty of said bond was $500; the condition was that C. C. Hollister should pay into the county treasury the sum of $39 quarterly, or such other sum as the county should be required to pay for the support of the said Martha Hollister, and fully indemnify the county against all expense for keeping the said Martha, &c. It is clear that this judgment was a continuing security; it was in the nature of a fixed lien : Luce v. Snively, 4 Watts 897; Moore v. Shultz, 1 Harris 102; Rutty’s Appeal, 3 Norris 61, and would not have been discharged by the sheriff’s sale but for the fact of there being a prior judgment. It is a mistake to suppose that payments made in accordance with the condition of the bond were payments on account of the penalty. That remains as a continuing security, and until the non-payment of the quarterly or other sum for the support of the lunatic as required by the county of Erie, there is no breach of the condition. After breach the obligors can discharge themselves only by the payment of the penalty.

The fund was claimed in the court below by W. C. Goodrich, whose lien is next in point of time. It is manifest he is not entitled to any portion of it. After paying over the amount due the county to the date of such payment, it will be the duty of the court below to impound the balance, if any, of the fund for the purpose of defraying the future expenses of the lunatic.

The order of the court below is reversed, at the costs of the appellees, and it is ordered that the record be remitted to the court below with directions to dispose of the fund in accordance with the views indicated in this opinion.