Lea, executrix, et al., v. Yard; Hazlehurst et al. v. Dallas, Secretary of the Commonwealth

*JANUARY SESSION, 1804. Present — Chew, President of the Court, and Rush, Riddle, Henry and Roberts, Presidents of the Common Pleas. Lea, executrix, et al., v. Yard. Hazlehurst et al. v. Dallas, Secretary of the Commonwealth. An auctioneer’s bond is a security for his private customers, as well as for the payment of duties to the government. Yard v. Lea, 8 Yeates 335, and Dallas v. Ohaloner’s executors, 3 Dali. 500, affirmed. Error from the Supreme Court of Pennsylvania. These actions depended chiefly on the same facts and principles; and were argued together, both in the supreme court, and in this court. The facts were these : John Chaloner was appointed an auctioneer for the city of Philadelphia, on the 1st of August 1*791, and gave a bond to the secretary of the commonwealth, in the penal sum of 2000Í., with two sureties, namely, Leonard Dorsey and Thomas Lea, who are both since dead. Richard S. Footman was also appointed an auctioneer, on the 9lh of June 1*795 ; and gave a similar bond, with Isaac Hazelhurst and John D. Coxe, as his sureties. The conditions of the bonds were of the following tenor : In Chaloner’s case : “ Whereas, the above-bounden John Chaloner was, on the first instant, re-appointed auctioneer, with authority to make sales by auction, at any place or places within the *city of Philadelphia, the * district of Southwark, or the township of the Northern Liberties, or Moyamensing, according to law : Now, the condition of this obligation is such, that if the said John Chaloner shall well and faithfully execute the aforesaid office of auctioneer, according to law; and shall, from time to time, well and truly account for all public moneys which shall come into his hands, and pay the same into the treasury of the state, agreeable to the directions of the several acts of assembly of this commonwealth which relate to auctions and auctioneers ; then the above obligation to be void, and of none effect, or to be and remain in full force and virtue.” In Footman’s case : “Whereas, by a commission bearing even date with the above-written obligation, the above-bounden R. S. Footman has been duly appointed one of the public auctioneers in and for the city of Philadelphia : Now, the condition of this obligation is such, that if the above-bounden R. S. Footman shall well and faithfully discharge and perform all the duties of an auctioneer, and in all things truly and fully comply with, and execute the laws relating to the office of auctioneer, then the above-written obligation to be void, otherwise, to be and remain in full force and virtue.” While these bonds, respectively, were in force, Mr. James Yard delivered to Chaloner, as public auctioneer, a considerable quantity of goods to be sold for him. The goods were, accordingly, sold ; but Chaloner retained $5011 of the proceeds, which he never paid over, nor accounted for, to Mr. Yard. And at the same time, he was considerably indebted to the state, for duties received upon sales at auction. Mrs. Gapper, in like manner, delivered to Footman, as a public auctioneer, a quantity of goods to be sold for her ; which were, accordingly, sold; but the proceeds never accounted for; although Footman had punctually paid into the state treasury, all the duties which he had collected. Chaloner being dead, an action was brought upon his bond, against his executors, &e., for the use of the commonwealth, in which judgment was rendered, and the amount of the duties (being less than the penalty) was recovered, Mr. Yard, thereupon, .issued a scire facias, returnable to December term 1798, against the executors of Thomas Lea, one of Chaloner’s sureties; while Mrs. Gapper instituted a suit upon Footman’s bond, in the name of the secretary of the commonwealth, for her use. Cases, comprising the foregoing facts (reddenda singula singulis) were filed in the actions, respectively, with an agreement to consider them as special verdicts, for the purpose of a writ of error: and the general question submitted to the court was, whether an auctioneer’s bond is a security for his private customers, as well as for the payment of the duties to the state ? * After argument, the opinion of the supreme court, was delivered, seriatim, on the 24th of March 1802, by Smith and Bbackenbidg-e, Justices (Chief Justice Shippen, and Yeates, Justice, declining to take a part in the decision, on account of their relationship to the defendants), conformable to which, judgment was entered for the plaintiff, in both suits: And writs of error were brought upon these judgments. *The case was argued on the 16th, 17th, 18th and 19th of January 1804, by M. Levy, JE. Tilghman and Lngersoll, for the plaintiffs in error, and by Lewis, liawle, S. Levy and Dallas, for the defendants in error. And in the course of the argument, both sides referred to the following sections of the several acts of the general assembly relative to auctions. 1. An act was passed on the 14th of February 1729 (1 State Laws, 164, Gall, edit.), “for regulating peddlers, vendues, &c.” The preamble recites, “whereas, of late, many idle and vagrant persons are come into this jjrovince, and under pretence of being hawkers or peddlers, and carrying goods, from house to house, within this province, to sell, have greatly imposed upon many people, as well in the quality as in the price of the goods, and under color of selling their wares and merchandises, have entered into the houses of many honest and sober people, in the absence of the owner or owners of the said houses, and committed felonies and other misdemeanors, to the great prejudice of the inhabitants of this province. For remedying of which inconveniences, and preventing such evil practices, and to the intent that no persons may be admitted to follow the business of hawkers and peddlers, within this province, but persons of known honesty and civil behavior,” &e., the 6th section of the act provided, “ That no person, or persons whatsoever, except as hereinafter is excepted, shall, after the publication of this act, take upon him, her or themselves, to sell or expose to sale, by way of vendue or auction, any wares, goods or merchandises, within the city of Philadelphia, unless such person or persons shall be recommended by the mayor, recorder and aldermen of the said city of Philadelphia, in their open sessions, to the governor of this province; and shall have given security to'the mayor of the said city, for the time being, for the use of the corporation, in such sum as shall be agreed upon by the said mayor, &c., provided the same do not exceed the sum 500i., for his or their honest and due Execution of the office of the vendue-master, within the city of Philadelphia, and for the due observation of the ordinances of the L said city, touching the regulating vendues or public sales, or auctions, within the same.” 2. An act was passed on the 26th of November 1779 (2 State Laws, 245, McKean’s edit.), “for the effectual suppression of public auctions and vendues, áre.,” to expire at the termination of the war. It provides for the appointment of a single “ auctioneer of the city of Philadelphia and the 9th section declares, “ that the said auctioneer shall, before he enters upon the duties of his office, become bound with two sufficient sureties, unto the president of the supreme executive council of this state, in the sum of 20,000i., conditioned for the faithful performance of the duties required of him, and for the honest and just satisfaction and payment of his employers, and every one of them. And besides the usual attestation required of the officers of this state by law, shall take an oath that he will, to the best of his skill and abilities, faithfully perform and execute the duties required of him by this act.” 3. An act was passed on the 23d of September 1780 (2 State Laws, 406, McKean’s edit.), “ to alter and amend,” the preceding act; by the 2d section of which, the appointment of three auctioneers is authorized, “ who shall continue for and during the will and pleasure of president, &e., and shall give bond to the president and his successors, with two sufficient sureties, in the sum of 20,000i. for the faithful discharge of their duties, and for well and truly per ■ forming the terms and payments in and by this act directed and required :* by the third section, it is provided, that the said auctioneers shall have an exclusive right to sell by public vendue, “ rendering and paying to the state treasurer, for the use of the commonwealth, one per centum, of the gross amount of the sales, so by him or them made as aforesaid, in manner following, that is to say — that each and every of the said auctioneers, shall once in every three months, render an account, upon oath, to the said treasurer, &c., of all the effects and property by him sold, at any time before the said time of rendering the same account, and since his last settlement, and shall then immediately pay to the same treasurer the full amount of the said one pound in the hundred pounds upon the same account. And upon any failure in rendering the same account, upon oath, or of payment of the said sum of one per centum, any auctioneer so failing or neglecting, shall be discharged from his place, and the said bond put immediately in suit:” And by the 8th section, it is provided, that the fees or recompense of the auctioneers, “ for selling at public auction, collecting the money, and paying over the same, without loss or waste, shall be, &c.,” a per-centage, more or less, according to the nature of the specified articles. *4. An act was passed on the 13th of April 1782 (2 Dall. Laws, 55), by Avhich the compensation of the auctioneers was reduced, “for their expenses and trouble in selling any property at public auction, collecting the money and paying over the same without loss; an additional one per centum was charged on the gross sales, for the use of the commonwealth, to be accounted for and paid over, as the preceding law directs, under the penalty therein mentioned; and it was declared, “ that the several bonds given by the said auctioneers to the president, for the faithful performance of the duties, of them required by the aforesaid act, shall be a security for the payment of the one per centum imposed by this act.” 5. An act was passed on the 9th of December 1783 (2 Dall. Laws, 169), by which the previous aots (with certain exceptions) were made perpetual; auctioneers were prohibited from buying, at public sales, on their own account; and it was repeated, that if an auctioneer failed or neglected to account, he should be discharged from his place, and his bond put in suit. 6. An act was passed on the 19th of March 1789 (2 Dall. Laws, 680), by which the appointment of an auctioneer for Moyamensing was authorized, who shonld give bond, with two sufficient sureties, in the sum of 2000Í. “ for the faithful discharge of his duty, and for well and truly performing the terms and payments in and by this act, and the several acts of general assembly, to which this is a supplement, directed and required.” 7. An act was passed on the 27th of March 1790 (2 Dall. Laws, 777), reducing the duty on sales to one per cent., and authorizing the appointment of two additional auctioneers, who shall give bond “with two or more sufficient sureties, in the sum of 20001., conditioned for the faithful discharge of their and every of their respective duties, and for well and truly performing the terms and payments in and by this act, and the several acts of general assembly to which this is a supplement, directed and required.” 8. An act was passed on the 26th of February 1791 (3 Dall. Laws, 91), by which the restriction upon the auctioneers to sell goods only within the districts, for which they were respectively appointed, was repealed and annulled. For the plaintiff in error. — 1st. It is proper to premise, that the present suits are instituted against sureties, after the principals are insolvent and *1011 ^ea<^ -^11^ independent of any peculiar hardship *in this ease, it J is a rule of law, as well as of equity, that the responsibility of a surety shall never be extended beyond the strict letter of his contract. (2 T. R. 370; 2 Wils. 379; 4 Ves. jr. 788.) Nor is the contract to be regarded in the same rigor, as if it had been expressed by the parties themselves, in their own terms; instead of being prescribed by a legislative act. In such a case, the meaning of the terms employed by the legislature should be unequivocal, plain and clear, before it is adopted as the meaning of the surety, to bind him in a manner so'injurious and oppressive. 2d. The acts of the assembly of the years 1780, 1782, 1783, 1789 and 1790 were in force, when these auctioneers were appointed; they direct that bonds shall be given, and they prescribe the terms of the condition of the bonds; but they do not expressly, in any instance, declare the bonds to be a security for private customers. From the year 1729, until the 26th of November 1779, although several acts were in force to regulate sales at public vendue, there is, likewise, no express provision to be found, declaring the bond of an auctioneer to be for the use of the individuals who employed him. Then, the only act, in the whole of the system, with all its successive modifications, by which the bond is expressly appropriated to the protection of an injured customer, is the act of the 26th of November 1779. 3d. The act of the 26th of November 1'779, by adding to a px-ovision, “for the faithful performance of the duties required of the axxctioneex-,” a provision “ for the honest and just satisfaction and payment of his employers, and every one of them;” shows it to be the sense of the legislature, that the expressions of the former would not embrace the objects of the latter provision. 4th. The duration of the act of the 26th of November 1779, was limited, by its own terms, to the continuance of the war, and the limitation, of course, affected the supplemental acts of 1780 and 1782; but the act of the 9th of December 1783, rendered the supplements perpetual, and so much of the act of 1779, as was not thereby altered or supplied. Then, it is to be considered, that the act of 1780, made expressly “to alter and amend” the act of 1779, not only incx-eases the number of auctioneers, but px-escribes a new condition to be annexed to their bonds, to wit, “for the faithful dischax-ge of their duties, and for. well and truly perfoi-ming the tei-ms and payments in and by this act directed and required,” totally omitting the passage in the condition before prescribed, “ for the honest and just satisfaction and payment of the employers ” of the auctioneer. 5th. The terms of the condition prescribed in the act of 1780, supplied and superseded the tei-ms of the condition in the act of 1779; they do not mean the same thing, and particulax-ly, they do not both embrace the rights of the individual employers, as well as the rights of the public. Thus, the duties referred to by the act of 1780, are the duty of keeping a regular x-egister of horses, *and of accounting to the state; and of acting fairly between buyer and seller; while “the tei-ms and payments” l-equired to be *- performed, are those which are specifically directed and required “in and by this act;” and the act nowhere directs or x-equix-es a payment to the employers, but only to the public. It is true, that the act of 1780, as well as the act of 1779, declares that, “ for selling at public auction, collecting the money, and paying over the same, without loss or waste,” the auctioneer shall be allowed a per-centage; but there is in this provision no duty prescribed, no tei-ms and payments stipulated; nothing that relates to asui-ety, or can affect him: it is mex-ely an enumeration of the services to be performed by the agent, ixx consideration of the compensation whxch the law allows him to demand and receive. 6th.. The legislative intention to limit the opex-ation of the bond to a govex-nmental security, may be fairly inferred from a variety of considex-ations: the smallness of the penalty; the change of expression, to exclude as it were the opposite constx-uction, when a public duty was first imposed by the act of 1780; the increase of the number of auctioneers, which gave individuals a selection, and so far rendered a provision in their favor unnecessary; the express provision uniformly made for individuals by the legislature in every other case of an official bond; and finally, the general understanding of the bar, expressed in various opinions given upon the case of Major Boyd. (3 Dali. Laws, 181.) 7th. It is not a sufficient answer to these arguments, that auctioneers are public agents, possessing a monopoly of the sales at public vendue, to whom private citizens are obliged to resort; and therefore, ought to be protected. In the first place, the regulations of the acts, though they compel individuals to employ the public auctioneer, do not prevent a special contract between them, as to the collection of moneys, nor even as to the rate of compensation. Besides, it is not true, that the acts expressly empowered the auctioneers alone to collect the proceeds of sales; and the general rule of law is well established, that where the dissenting principal declares himself, a vendee cannot be discharged by a payment to the agent. (2 Ves. 221.) Even in the case of a compulsive agency, if the employer pays the duty and commissions to the auctioneer, he may sue the vendee for the purchase money. (7 T. R. 359.) And in some cases, a contrary doctrine would be iniquitous ; for, suppose the auctioneer becomes bankrupt, before the money is collected; may his assignees collect the money, and put the employer to a dividend ? Or, suppose the sales are made for approved notes, at distant periods, shall it be deemed right and lawful, that the auctioneer shall take the notes, and hold them, or use them, at the risk of the employer, until the credit is expired; and possibly until the money is recovered upon them in an action at law ? *For the defendants in error. — 1st. The general question is, whether the official bond of an auctioneer is a security for his fidelity towards individuals, as well as towards the public ? On this question, whatever is the meaning of the legislature in the acts of assembly, is the meaning of the parties in the bond. Both principal and surety are bound, according to that meaning; and beyond it, neither of them is bound. The only distinction here between the principal and surety is, that the principal may be liable, either at common law, or on the bond; but the surety can only be liable on the bond. (2 T. R. 105; 1 H. Black. 186.) On the true construction of the bond, however, the surety, as well as the principal, would be liable, even beyond the direct letter (though the present case requires it not). 4 Bro. P. C. 87. And the obiter dieta of Butler, in 2 T. R. 370, must be explained by the subject-matter; while the authority of 2 Wils. 379, yields to the contrary decision in 1 T. R. 291. 2d. Under every modification of the office, duties and bonds of auctioneers, the legislature meant to protect the customers that employed them, as well as the government that appointed them. On principle, it must be meant, since the legislature takes from private individuals the right of choosing their own agents; and from analogy to other public officers, it must be meant, for there is not a single instance in the whole of our code, where an official bond is not, either by express words, or the established, practical construction, held to afford remedy and relief to injured private persons ; as in the cases of sheriffs, coroners, administrators, &c. Cowp. 140 (against Ambl. 183); 3 Atk. 248; 2 Inst. 650; Vaugh. 334; 12 Co. 30 b. But the same meaning is clearly and necessarily derived from *he words of the legislature, in the acts under immediate discussion. Thus, the act of 1729 was passed, because street vendues, &e., had become a nuisance ; no revenue, or other public object, than to insure fair-dealing, was contemplated ; and the condition of the bond was simply “ for the honest and due execution of the office.” No other honesty or duty could be in view here, than honesty and duty towards the customers of the auctioneer. True, the bond was given for the use of the corporation, and the customers had no personal remedy upon it; but still it operated as a penalty for their protection ; and if the auctioneer was dishonest, or failed in any way to do his duty, the forfeiture was absolute under the act of 1729 ; while it is now contended, that under the act of 1780, so far as security is concerned, if he is honest to the public, there can be no forfeiture of the official bond, let him be ever so fraudulent towards the private citizen. The act of 1779 confirms expressly the legislative meaning to be in favor of giving a security to the employers of auctioneers, both in the terms of the condition of the bond, and the oath of the auctioneer ; and although the phraseology is changed, the substance of the provisions remain the same ; “ an *honest and due r*, Q. execution of the office,” under the act of 1729, certainly including *- “ an honest and just satisfaction and payment of the employers,” as well as a performance of the general duties of the office. But in the act of 1779, “ the use for the corporation,” is discontinued; no other use of the official bond is declared ; the penalty, reduced by the scale of depreciation, is nearly the same as before ; certain duties are prescribed in the 9th and 10th sections (such as a search for offenders, and collecting and paying over the proceeds of sales); but even under this act, no duty is contemplated to be raised on sales at auction. Then, the essential inquiry rests on the act of 1780, which, as well as all the subsequent acts, passed, not to repeal, but to alter, amend, supply or enlarge the provisions of the act of 1779 ; and being in pari materia, must be considered together, in order to ascertain the true moaning of the system. The act of 1780 is the first that contemplates a revenue from sales at auction ; but independent of the provision to secure the revenue, it continues, in substance, the provisions to protect the employers ; particularly, making it a duty, on which the right of compensation arises, to collect the proceeds of sales, “and pay over the same, without loss or waste.” But it is urged, that the act of 1780, when it prescribes the condition of the bond, omits entirely the previous stipulation, “ for the honest and just satisfaction and payment of employers;” and claims from auctioneers only “ the faithful discharge of their duties, and well and truly performing the terms and payments, in and by this act directed and required.” The omission suggested was correct; for in the previous act, the stipulation was tautologous and surplusage ; as the duties of the auctioneer (which he was bound to perform) were emphatically to collect the money and make payment to his employers, no revenue being at that time in contemplation. The appointment of the auctioneer fixes his duties, as does the appointment of a sheriff, &c., without specification or detail. Selling, collecting and paying, form the great outline of those duties. The first and second are common both to the state, and to individuals ; and as to the third, it branches into a payment of the tax to the state, and of the purchase-money to the individuals. Besides, “ the terms and payments directed and required in and by this act,” are also to be performed ; and the payment to the employer is required by the act, as well as the payment to the state. In short, the two members of the condition of the present bond, fortifying and sustaining each other, must embrace all the duties, all the obligations, which the laws impose upon an auctioneer, or the meaning will be constrained, and inconsistent with the general import of the words. 3d. But in opposition to the meaning of the legislature thus deduced, every kind of inference is offered, as well from the silence, as the expression of the laws. It is said, that neither principal nor surety are liable to the employer, -* *for a performance of their duty to him ; because the act of 1780, and the subsequent acts, do not say so, expressly, as the act of 1779 did; and because the penalty of the bond is inadequate'to afford an indemnity for the injury to which, we contend, it applies. If, therefore, the words omitted had been retained, the controversy must so far have ceased; and the only question is, whether words equipotent, or even more extensive for the object, are not employed. But as to the second difficulty, it sounds in this absurdity, that because the bond is not sufficient to protect the employer entirely, it shall not protect him at all. Is the sheriff’s bond, is a survey- or’s bond, is every administration bond, found commensurate with the possible delinquency or defalcation ? And is it conceivable, that because a surety is called on for less than the loss, that, therefore, he is to pay nothing ? But the truth is, that the sum is more adequate now, than under the act of 1799, when its application to the relief of the employer is admitted. It is raised from the sealed value of 518i. (on 20,000i., at 38|- for one) to the specie value of 2000Í. The increase of the number of auctioneers, virtually augments the fund for the indemnity of individuals ; the restriction to sell in their respective districts (while in force) limited the quantum of custom of each auctioneer ; and the obligation to account quarterly with the state, under the penalty of an immediate dismission from office, reduced the demand of the state for an indemnity to a mere possibility. Neither the first tax of one per cent., nor its subsequent accumulations, could, under such circumstances, require the protection of a penalty of 2000Í. from six auctioneers. (Park. 273.) Something more must be protected than the revenue ; the general provision of the act of 1713 (1 State Laws, 102, Gall, edit.) gives a ground of exposition from all official bonds ; and when revenue only is meant to be protected ; or the penalty is to operate as a punishment to the delinquent, not as a relief to the injured ; in the English statutes, as well as in the Pennsylvania code, the language of the legislature is appropriate and unequivocal. (19 Geo. III., c. 56, § 7 ; 1 Anstr. 586.) 4th. If arguments ab inconvenienti may avail, what can be more forcible, than the inconvenience which proceeds from the opposite construction, when the auctioneer is regarded as a public agent, invested with the exclusive right to collect the moneys on sales at auction ? The rule is different as to a common-law agency; where there are three voluntary parties, the owner', the agent and the buyer (2 Yes. 221), and the difference is not destroyed, though modified, in the case of an agent del credere. (Bull. N. P. 130; 7 T. R. 539.) Here, however, the licensed auctioneer is not only a legislative agent del credere to the buyer, but the state constitutes a fourth party, giving the law to every part of the transaction, to every degree of the responsibility. The auctioneer is, thus, *1061 a trustee ^01' *state: he, not the owner of the goods, nor the buyer, -* must pay the duties to the state; and he gives the security, not the owner. It naturally follows (and so is the practice), that immediately upon a sale, the auctioneer becomes the debtor to the owner of the goods, as well as to the state. The owner does not know the purchaser, and seldom inquires for him. Tho knowledge, or the inquiry, would be superfluous, as the auctioneer alone possesses the power to collect, as well as to sell: it is a vested right, by operation of law, and not, in its nature, assignable. (2 Dall. 174; 1 II. Black. 81; Willing v. Rowland, But it is an universal principle, that where a power is given, a duty arises. The sheriff has a power to execute a capias; and therefore, it is a duty to do it. The coroner has a power to hold inquests; and therefore, it is a duty to hold them. Davis v. Commonwealth, 3 Watts 297. See 8 Dali. 500. I have been favored with a note of what was said by the judges; from which, in substance, may be collected the following principles. Smith, Justice. — This is strongly pressed as a case of sureties, against whom an obligation ought never, it is said, to be extended, beyond the strict letter. 2 Oo. 870. But the truth is, that where there is a joint obligation, the law does not, abstractedly, recognise the character of a surety : and after all, sureties must be bound, according to the true construction of the obligation, whatever may be the form of the expression. 1 Bro. Oh. 87. The essential question, therefore, is, to what duties does the condition of the bond refer ? It is a general rule, resulting from a view of our whole official system, that where an officer gives a bond for the performance of his duties, it shall operate to protect the individuals who are obliged by the law to resort to his office, as well as the public, by whom he is appointed. From many instances, it is sufficient to mention those of sheriffs, coroners and surveyors. The instance of an auctioneer, independent of the positive provisions of the statute, seems, at least, to be, as much as any other, within the reason, principle and policy of the rule. He is a public agent, with an exclusive authority to sell at vendue. Individuals cannot employ any other agent for the purpose of selling their goods; and it is the uniform practice, to leave to him too the collection of the purchase-money. Indeed, I cannot perceive how the owner of the goods could, consistently with the various provisions of the laws, maintain an action against the vendee for the price, in his own name. I grant, that the general rule is, that he who sells by another, is, in contemplation of law, the seller himself, with the right of action to recover the price; but that the rule applies only, where the owner of the goods may choose his agent, and not where he is obliged to employ the agent of the public. 2 Str. 1182. Inconveniences might easily be suggested, arising from the opposite doctrine. Auctioneers often advance money on goods sent for sale; would it be just, that the owner should still have the power to demand and recover the price from the purchaser ? On a sale, the state acquires a right to the duty, as well as the owner to the purchase-money: shall the owner be allowed to recover the duty, as well as the price; or must the vendee bo exposed to two demands and two suits ? If, then, upon motives of public policy, a public agent is imposed on the citizens for the sale of their goods, nothing but express words would warrant our supposing, that the legislature, while they took a bond to protect the collection of a small revenue, meant to leave unprotected so great an amount of private property. The very smallness of the penalty of the bond, has, however, been urged as an argument, to show that it could not be the intention of the legislature, to embrace the interests of individuals, as well as the rights of the state. To this objection, I answer: lit. That, in proportion to the responsibility, the penalty is larger, than in the case of sheriffs’ bonds. 2d. That there are several auctioneers, each giving a bond in the same sum; and the vendor may consider which of them, and his sureties, may be most safely intrusted. 3d. That by the condition of the auctioneers’ bond, the sums collected are to be immediately paid over; whereas, in the case of a sheriff, the moneys levied may be retained for a considerable time. Upon the whole, I think, judgment must be rendered for the plaintiff. Beaciceneidqe, Justice. — The act of the 23d of September 1780, is the first that' reserves a per centum for the state, on sales at auction ; but it will not be said, that adding to the duties of the auctioneer diminished the effect of the obligation. Every duty which an auctioneer is bound to perform, is embraced in the terms of the condition ; and paying over the proceeds of the sales to his employers is expressly a duty. The reduction of the penalty of the bond from 20,000£. to 2000Í., might raise a presumption, that when a revenue was contemplated, the revenue only was to be protected; were not that circumstance rebutted, by considering the relative value of money, at the two periods of passing the laws. Then, the auctioneer is a public agent, who must, oe employed to sell goods at public vendue. He is not only the exclusive agent to sell, but the law, obviously, makes him the exclusive agent to collect the amount of the sales; the owner of the goods cannot forbid the payment to the auctioneer, and recover the purchase-money himself. In such a state of things, it is reasonable and just, that the law should protect the private citizens, who are compelled to trust a public agent, in this, as well as in any other instance; and although the penalty is small, it is, in my view, a positive provision to protect the customers of the auctioneer, as well as the revenue of the public. Judgment must be for the plaintiff It may be proper, after this recapitulation, to observe, that the conditions of the bonds, in the present cases, were not drawn strictly in the terms of the acts of assein bly; but it was agreed, to argue and decide the general question, independent of any objection that might be made to the form of the binds. Willing et al v. Rowland et al., in the supreme court, 1791, before McKean, Chief Justice, and Rush and Bryan, Justices. This was an action of assumpsit, for goods sold ana delivered. The goods were sent by the plaintiffs to the store of John Mease, a licensed auctioneer, and were sold, at public vendue, to the defendants. Mease became, soon afterwards, a bankrupt; and the defendants refused to pay the purchase-money to the piaintiiis, insisting upon a right to set off a debt due to them from the bankrupt. The Court were decidedly of opinion, that the plaintiffs could not maintain the present suit; that, by law, the right of action is vested in the auctioneer ; and that the common-law rule in the case of factor and principal, did not apply to the case of a public auctioneer. A verdict was, thereupon, given in favor of the defendant. Bowie and Hallowell (by the latter of whom this note is obligingly furnished), for the plaintiffs, cited Com. Dig., title ‘‘Merchant,” B. 81; 13 Vin. Abr. 9; Roll. Rep. 337; 2 Vern. 638; 3 Bac. 519; 2 Str. 1182; Co. B. p. 236-7. Bradford and McKean, for the defendants, who cited Bull. N. P. 130, 280 ; 12 Mod. 514-5; Molloy 466. [MAJORITY] After deliberation, The Court were unanimously of opinion,- that the inctioneer’s bond was intended, by law, for the benefit of his private eus-omcrs, as well as for securing the duties payable to the government: And therefore, the judgments of the supreme court were affirmed; and the records ■remitted for further proceedings, In the case of Dallas v. Hazlehurst, the defendants paid the amount of tho penalty of the bond into the supreme court, to be disposed of as the court should direct Todd, for several creanors who had not brought suits, or whose suits were subsequent in date to Mrs. Gapper s s,ut, asked the opinion of the court, whether the creditors of Footman were not entitlea to share in the fund, pro rata ? Dallas and S. Levy urged, that upon principal and autnority, the creditor first suing was entitled to be first and completely paid, before other creditors were admitted. The Court were clearly of that opinion; and Mrs. Gapper’s debe with interest was, accordingly, satisfied, leaving only the surplus of the fund for other creditors. This case was overruled in Girard v. Taggart, 5 S. & R. 19: and for some remarks upos Willing v. Rowland, see Id. 31, 33.