Speck v. Commonwealth

The opinion of the Court was delivered by

Kennedy, J.

The first error assigned is an exception to the opinion of the court, admitting a certified copy from the auditor-general’s office, of the bond upon which the suit is brought, to be read in evidence to the jury. The pleas put in by the defendants to the action, being payment and performance of the condition of the bond, rendered the production of it unnecessary at least for the purpose of proving its existence and execution, because that was admitted by the pleas. The only occasion, therefore, that there could be for producing the bond itself was, that its contents might be fully made known to the court and jury; but the Act of Assembly of the 31st, of March 1823, has made a certified copy of it by the auditor-general, from his office, in which it remains, evidence in all cases where the original would be received as such in courts, so that the court decided correctly in admitting the copy in place of the original.

The second error is an exception to the answer of the court given to the first point submitted by the counsel for the defendants. This point was, that the-condition of the bond was not in conformity to the Act of Assembly, under which it was taken, but different in its terms from what is thereby prescribed. The court, however, instructed the jury, that as nothing was claimed in this action but what was clearly embraced by that part of the condition of the bond which was strictly in conformity to the Act, the bond, therefore, was good as regarded the claim made on it in this action; and that the plaintiff or commonwealth might recover on it, if entitled to do so in other respects. This instruction, we think, was correct. For, so far as the Act of Assembly prescribes the form of the condition of the bond, and specifies the nature of the acts and duties which the collector shall be bound to perform, it may be considered as directory; and notwithstanding it may designate acts or things to be done and performed beyond those specified in the Act, the bond will be held good at least for everything mentioned in the Act, unless it be declared expressly void, if not taken in the form thereby prescribed, or perhaps negative words used, declaring that it shall not be taken in any other form. But nothing of the kind is contained in the Act under which the bond in suit was taken. It is well settled that a bond taken at common law, containing distinct matters in its condition, some of which are lawful, but others not so, is good and binding as to all matters mentioned therein which are lawful. The same law, I take it, is applicable also to a statutory bond, unless it shall be declared otherwise, as mentioned above, by the statute directing it to be taken. See The Bank of the Northern Liberties v. Cresson, (12 Serg. & Rawle 314).

The third error is an exception to the answer given by the court to the second point of the defendants. By this point the court was requested to instruct the jury that unless it appeared from the evidence that Frederick Speck, the collector, was furnished with a copy of the account made out against him, within thirty days before the bringing of this suit, and that it was not commenced until six months after the settlement and statement of the account, it could not be sustained. This objection to the maintenance of the action, is founded upon the ninth and tenth sections of the Act of the 5th of March 1811, (5 Smith’s L. 228). The first of which enacts, “ Within thirty days after the settlement of an account agreeably to this Act, on which a balance appears to be due to the commonwealth, the auditor-general shall send, by mail or otherwise, to the person or persons indebted, a copy thereof under his hand and seal of office; and if the amount or balance of such account shall not be paid into the state treasury within six months after the date of settlement, the auditor-general shall have a second official copy of all such accounts made and put into the hands of the state treasurer.” And the tenth section enacts, that “ the state treasurer, immediately upon the receipt of a copy of any public accounts, agreeably to the next preceding section, shall proceed to recover the amount or balance due thereby to the commonwealth by due course of law” &c. But the court, upon the authority of the fifteenth section of the same Act, told the jury, that suit might be brought immediately against the sureties of a public delinquent, if it should be deemed conducive to the public interest by the state treasurer to do so. In this direction we think the court was right; for the words of the fifteenth section are, “ The state treasurer may, if he deems it conducive to the public interest, proceed immediately against the sureties of any public delinquent.” So that it appears clearly, from the terms of this last section, that it is left to the sound discretion of the state treasurer, to allow the six months’ indulgence after settlement, ■before suit shall be commenced, or not, as he pleases.

The fourth and last error is an exception to the answer given by the court to the defendant’s third point, by which the court was requested to instruct the jury, if it appeared that F. Speck, the collector, paid into the treasury the whole amount of money that he received for the year for which the bond was given, the plaintiff could not recover. To this the court gave the following answer:—“ As a general rule, a debtor may appropriate his payments as he sees proper, when he makes them; if, however, he does not do so, the creditor may appropriate; but if neither does, the law will do it. In cases of running account, without any specific appropriation by either party, when debts and credits are made at different times, the payments are to be deemed as made on account of liabilities antecedently due as they stand in the account. The account here was a running one; the payments seem to have been appropriated as the law contemplates, and having been settled by the proper officer, and a balance struck against the collector, as appears by the papers in evidence, I can see no difficulty in the way of the commonwealth’s recovering. I cannot instruct you as here requested.” Unless the counsel of the defendants meant that the court should have left it to the jury to decide whether the whole of the identical money received by the collector for tolls, during the year for which the bond in suit was given, had been actually paid by him into the state treasury, I cannot perceive even the slightest colour for exception to the answer. If, however, the fact were so, and there had been any evidence tending to prove it, that the whole amount of the very moneys received by the collector, during that year, had been duly paid by him into the state treasury, there might have been great equity in favour of making the appropriation claimed on behalf of the sureties! But no evidence was given, it would seem, tending distinctly to establish the fact. Although the evidence showed that he had paid moneys into the treasury during that year, of perhaps greater amount than what he had received for tolls, yet it did not appear from what source it came. But it appeared that, during the two previous years, he had failed to pay the amount of the tolls received by him; from which it was necessarily to be inferred, that he had appropriated the money so received to his own benefit, or put it out to use. And as it thus appeared, incontestably, that he had been in the practice of using the moneys received by him in payment of tolls, it became impossible to say that the moneys paid into the state treasury by him, during the year in question, were identically the same that he received for tolls during that year. Under the particular circumstances given in evidence, it was quite as probable, that the moneys thus paid by him were derived from those sources to which he had misapplied the moneys received by him for tolls during former years. We therefore think the answer of the court on the third point was likewise correct.

Judgment affirmed.