Alcorn v. Commonwealth

The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— The plaintiff in error was surety in the official bond given by the constable of Cherrytree township, Venango county, under the provisions of the Act of April 3d 1851, Pamph. L. 317, conditioned to pay the treasurer of said county the full amount of taxes contained in any warrant or schedule delivered to him by the said treasurer for collection, after deducting exonerations, within four months after the delivery thereof.

The bond is dated August 81st 1865, and this action was brought thereon against the surety on the 8th of October 1868. It was shown on the trial that the constable had failed to pay the full amount of the taxes contained in the duplicate or schedule which was delivered to him for collection, and with which he was charged on the books of the treasurer, after deducting exonerations, and that he removed from Venango to Crawford county, in May 1866, where he has since resided. It was further shown that the surety gave notice to the assistant treasurer, in June 1866, that he would have to look to the constable for the amount for which he was in default, and that if he did not proceed to collect the' amount in arrear, he would be holden no longer. No suit was brought against the constable by the treasurer, nor was any action commenced on his official bond until the institution of the present suit against the surety.

The first question presented by the assignments of- error in this case is : Was the surety discharged from his liability by the neglect of the treasurer to bring suit against the constable after the notice was given ? This question arises on the answers ox the court to the plaintiff’s 5th and the _ defendant’s 2d point, which constitute the 1st and 2d assignments of error. The court, in answering these points, instructed the jury, in substance, that if they found that at the time the notice was given the constable had not left the county of Venango, and had property out of which the money could be made, the surety was discharged. But if the defendant gave no notice till after the constable had left the county, taking with him all his property except choses in action of small amount, soon afterwards given to the school board, and has not since resided in the county, then the notice was too late, and the plaintiff may recover. The uncontradicted evidence was that the constable had left the county before the notice was given, and we have, therefore, nothing to do with the fii’st instruction contained in the answer. It was as favorable as the defendant had any right to ask, even if the notice had been given before the constable left, and no complaint is made of it. And there is nothing in the second instruction of which the defendant has any reason to complain. If the surety of a public officer is discharged from liability by neglect to bring suit against such officer, after notice by the surety that he will no longer be holden unless suit is brought — a point which does not seem to have been decided by this court — it does not follow that the surety will be discharged if the defaulting officer has removed from the county, where the liability was incurred, before the notice was given. If this were the rule, what would be its extent or limit ? Must the public or its agents follow the officer wherever he is to be found, and bring suit against him, in order to hold the surety liable for his default after such notice ? This would be an unreasonable requirement, and it seems to me that no such duty can be implied from the nature of the contract, or inferred from the relation of the parties. The utmost that the surety can reasonably require is, that the public or its agents shall bring suit against the defaulting officer if he is within the jurisdiction of the court where the liability was incurred. But whether they are hound to do this is a question which we need not determine, as it does not properly arise in this case.

The next question presented by the record is, whether the suit is barred by the 4th section of the Act of 29th March 1824, limiting the time for the commencement of actions against sureties in constable’s bonds to three years after their date.

The court instructed the jury that the action was not barred, and this was clearly right. The bond upon which this suit was brought is not the ordinary bond given by a constable for the just and faithful discharge of the duties of his office, but a bond given under the special provisions of the Act of April 3d 1851, imposing upon constables in the county of Venango the duty of collecting state and county taxes in their respective townships, conditioned for the faithful discharge of the duties imposed upon them by the act, and for the payment to the treasurer of the county of the amount of taxes contained in the warrant or schedule delivered to them. It is clear that such a bond does not come within the provisions of the Act of 1824, but is embraced in the general provisions of the Act of 1798, and therefore the suit is not barred because it was not commenced within three years after the date of the bond.

The only remaining question is that which is presented by the 4th and last assignment — and there was not a particle of evidence upon which to raise the question presented by this assignment— and if there had been, it could not have availed the defendant. However conclusive upon the treasurer the settlement of his accounts by the auditors may have been, if unappealed from, it is clear that the settlement could have no effect upon the constable’s liability for the taxes, one way or the other, though the treasurer may have been charged by the auditors with all the taxes placed in his hands, except the sums reported against him — for the very plain reason that it was not a settlement of the constable’s account.

As we discover no error in the instructions given by the court to the'jury, and as none others are alleged, the judgment must he affirmed. Judgment affirmed.