UNITED STATES SUPREME COURT DECISIONS ON-LINE

This was an action of Debt, instituted in the name of the Secretary of the Commonwealth, on an official bond, which the testator had given, with two sureties, for the faithful discharge of his duty as a public Auctioneer, and for well and duly performing the terms and payment imposed by law. 2 Vol. Dall. Edit. 777. At the time of Chaloner's death, a considerable sum was due to the public, for duties on sales at auction; nor had he accounted to many of his creditors, for the proceeds of the goods, which they respectively deposited with him. The action, however, was instituted by the Attorney-General, for the State; and judgment was entered for the penalty, by consent of all parties, to satisfy the amount of the duties, reserving the subsequent claim of the creditors.

But Lewis and Rawle, on behalf of James Yard, one of the creditors, now contended, that the State was not entitled to

Page 3 U.S. 500, 501

recover more than the duties accruing during a term of three months; and that the Judgment rendered upon an official bond must enure to the benefit of those, who shall prove themselves injured and entitled. *By the first Act of Assembly, imposing a tax on sales at auction, it is expressly declared, that if an auctioneer does not once in every three months account for, and pay into the Treasury, the duties arising from his sales, he shall be discharged from his place, and his official bond shall be put immediately in suit. 1 Vol. p. 865. Dall. Edit. And this regulation is recognized and confirmed by every subsequent law on the subject. 2 Vol. 55. 680. Ibid. 777. At the expiration of three months, therefore, the testator, failing in his public payments, ought to have been removed and sued; the lien of the State on the bond then ceased; and if she afterwards suffered, it was by her own laches. On the other hand, there is no fault imputable to the creditors; the law compelled them to sell their goods by a public auctioneer; and the testator's continuance in office, was prima facie evidence, that he had faithfully accounted to the Treasurer. It is a plain principle in equity, that whenever a man, who had originally a legal remedy, impairs it by his own neglect, or omission, he shall be postponed to another more vigilant claimant: And that the Legislature entertained the same equitable sentiment, may be collected from the relief, which they afforded to the sureties of an auctioneer, under similar circumstances. 3 Vol. p. 131. Deducting, therefore, the amount of the duties, that were payable during the three months, in which the testator became first a defaulter, the residue of the penalty and judgment belongs to the creditors; if they can prove themselves, at all, entitled to the indemnity of the official bond, which is a question now sub judice, in another action, between them and the Executors of one of Chaloner's sureties.

The Attorney-General observed, that whatever might be the ground of equity in favor of a surety, who complained that the principal had not been compelled to account agreeably to the strict rule of the law; there, surely, could be no pretence for such a plea, in favor of the principal himself. This is a suit to recover from the estate of the delinquent; and the only doubt that occurred was, in what form it ought to be instituted, by action of debt on the bond, or by a general indebitatus assumpsit. Either course, however, is available; and it does [3 U.S. 500, 502]

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