Dallas, Secretary, &c. versus Chaloner's Executors

Dallas, Secretary, &c. versus Chaloner’s Executors. THIS was an ailion of Debt, inftituted in the name of the Secretary of the Commonwealth, on an official bond,' wnich the teftator had givep, with two fureties, for the faithful-dlfch’arge of his duty as a public Auctioneer, and for. well and duly performing the terms and payment impofed by law. 1F0I. Dali.'Edit. 777; A.t the time of Chaloner’s death, a'confide-rable fum was due to the public; for duties dn (irles- at áuilion ; nor had he accounted to many of his creditors, for the proceeds ■ of the goods, which, they re-fpeitively depoftted with him. The adlion, however, was inftituted' by the’ Attorney-General, for the State; and judgment was entered for the penalty, by con-íent óf all parties, to fatisfy the amount 'of the duties, referving' the-fubfequent claim of the creditors. But Lewis and Rawle, on behalf of James Tard, one of the •creditors, now contended-- that the State was not entitled to recover more, than the, duties accruing during a term of three months; and that the Judgment rendered upon an official bond • muft enure to the benefit of thofe, who ihall prove themfel ves injured and entitled. By the firft ACt of Affembly, impó-fing a tax on fales at auCtion, it is exprefsly declared, that if an auctioneer does not once in every three months account for, and pay into the Treafury, the duties arifing from his fales, he ihall be difcharged from his place, and his official bond ihall be put immediately in fuit, 1 To/. 7>. 865. Dali, Edit. And this regulation is recognized and confirmed by every fubfequent law orí the fubjeCt. ⅞ Vol. 55. 680. Ibid. 777. At the expiration of three months, therefore, the teftater, failing in his public pay-meats, ought to have been removed and fued ; the lien of the State on the bond then ceafed -; and if ihe afterwards fuffered, it was by her' own laches. On the other hand, there is no fault imputable to the creditors ; the law compelled them to fell their goods by a public auctioneer; and the teftator’s-con-tinuance in office, was prima facie evidence, that he had faithfully accounted to the Treafurer. It is a plain principle in equity, that whenever a man, who had originally a legal remedy, impairs it by his own negleCt,' or. omiffion, he ihall be poftooned. to another more vigilant claimant: And that the Legifiature entertained the fame equitable fentiment, may be collected from the relief, which they afforded to the fureties of an auctioneer, under fimilar c.ircumftances. 3 Vol.p. 131. Deducting, therefore, the amount of the duties, that were payable during the three-months, in which the teftator became firft a defaulter, the refidue of the penaltyand judgment belongs to: the creditors; if they can prove themfelveS, at all, entitled to the indemnity of the official bond, which is a queftion now, fib judice, in ah >ther ;aCtion, between them and the Executors ,.bf one of Chaloner's fureties. The Attorney-General obferved, that whatever might be the ground'of equity in favor óf a furety, who complained that the principal had not been compelled to account agreeably to the ftrift rule of the law; there, furely, could be no pretence for fuch a.plea, in favor of the principal himfelf. This is.a fuitto' recover from the eftate of the delinquent ; and the only doubt that occurred was, in what form it ought to be inftituted,-by action of debt on the bond, or by á general indebitatus ajfimpfit. Either courfe, however, is-available ; and it does not lie with a third party to fay, that, in the courfe which is purfued, the State ihall not recover from her debtor. M’Kean, Chief fuftice. It.isan éftabliffied principle, that the perfon who fir'ft fues, and obtains judgment, on an official'Bond, is entitled to take the whole of-the penalty, if his demand amounts to fo much, i* tixclclion of every other, claimant. [MAJORITY — M’Kean, Chief JuJlice.] M’Kean, Chief JuJlice. This is an aCtion brought upoa the official bond of a public auctioneer, to recover the amount of the duties payable to the State. It is,true, that the law directs auctioneers to be difplaced, and their bonds to be put in fuit, if they do not, once in three months, pay the duties into theTreafury: but there is no provifion for annulling the bonds,, or forfeiting the remedy of the State upon them, in cafe that direction ihould not be complied with. As to the delinquent himfelf, fuch a provifion would have been abfurd ; and as to his fureties, it is enough to obferve, that their cafe is not at prefent before .the Court; nor is the objection made with a view to their relief. Let the Judgment be entered in favor of the Commonwealth for theamount of the duties, with interdi from the time when the money ought to have been paid into the-Tfcafury.