Miltenberger v. Commonwealth

The opinion of the court was delivered by

Coulter, J.

— The error assigned in relation to the matter contained in the special plea of defendant below, is fully and finally disposed of, by the case of Commonwealth v. Patterson, 8 Watts 515, in which it was ruled by this court, that the limitation to an action against sureties of administrators, contained in the 2d section of the act of 4th April, 1797, is not applicable to an original administration bond taken by the register, but only to an additional bond, given by the executor or administrator by order of the Orphan’s Court. This suit being on the original administration bond taken by the register, is without and beyond the limitation, which has no application to it.

The statute, which regulates proceedings on bonds, such as this, given to the Commonwealth for the purpose of securing the faithful execution of the respective offices, employment or trust devolving on the persons who give such bonds, particularly regulates the mode of proceeding, and the manner in which judgment shall be entered on such bonds. And the provisions of the statute must be followed. The judgment in this ease, in the particular in which it is complained of, is entirely in conformity with the statute: that is, for the Commonwealth in the amount of the obligation or bond; and secondly, for the plaintiff in the issue, (Sheriff,) in the amount of damages assessed by the jury. It is in vain to say that there ought to be a judgment for the debt found due to the plaintiff, and for the detention of that debt, inasmuch as it is an action of debt, because the statute enacts that the judgment for the debt sued for shall be in favor of the Commonwealth, that is, the amount of the bond; and secondly, for the plaintiff in such issue, that is, the person who is named on the record, as the individual for whose use the suit is instituted, for the damages assessed, and for the costs accrued between such plaintiff and the defendants. In Carman v. Noble, 9 Barr 372, it is said, that in such cases, according to tbe terms of the statute, there ought to be two judgments, one for the amount of the penalty of the bond, which would be cautionary, in favor of the Commonwealth, and the other for the plaintiff, as the cestui que use is denominated in the statute, for the amount of damage he should prove. In the same case it was ruled, that when the substantial elements of a valid judgment appeared on the record, this court would mould them into the form required by the statute. But this judgment might be supported under the English practice, under their statute, which regulated our practice, until our statutory regulations on the subject, superseded it. In England, at the trial, the jury found a verdict for the plaintiff, with fifteen shillings damages, and forty shillings costs, and also assessed the damages for the breaches; and then, on the return of the postea, the judgment is entered for the debt, which is the penalty of the bond, and one shilling damages, the latter being merely nominal; the real amount of the damages being that assessed by the jury, for the breaches assigned: 1 Saunders 58, N. 1.

The jury have found the breach assigned, and assessed damages for it. In that breach it is distinctly averred, that there was a debt due the plaintiff and unpaid, and which the administrator refused to pay; and the nature of the debt is distinctly set out. The jury also find in favor of the Commonwealth, for the penalty; the whole scope and intent of our statute is therefore fulfilled, in this particular.

There is nothing whatever in the error assigned, as to the damages laid in the declaration. These were not on account of the breaches, or for the amount of damages sustained by the plaintiff in consequence of the breaches; but merely the formal addition to the declaration of nominal damages. Although the bond was penal, it was unnecessary and mere surplusage, though it is often added to the narr. on penal bonds.

The devastavit is sufficiently alleged in the breach assigned- to support the verdict found, and judgment rendered thereon. If any technical form was wanting in the setting out a devastavit, it appears to have been fully supplied by the evidence given by the plaintiff. After verdict, upon a full trial on the merits, we cannot disturb the judgment on this account.

Judgment affirmed.