
    [Philadelphia,
    December 29, 1828.]
    The COMMONWEALTH against WEST.
    IN error.
    A prothonotary, who has received one thousand five hundred dollars for each year he was in office, is bound to account for, and pay over to the commonwealth, fifty per cent, upon all fees earned while he was in office, and received by his successor, and paid over to him after he has gone out of office.
    But the sureties in his official bond, are not liable, in case of his omission to account for, and pay over the amount due to the commonwealth, upon the fees thus received.
    On a writ of error to the District Court for the city and county of Philadelphia, it appeared, that this was a scire facias, issued to the December Term, 1827, by the Commonwealth of Pennsylvania, against Timothy Matlack, late prothonotary of the said court, and William West and George Worrell, his sureties, on a judgment for four thousand five hundred dollars, obtained on the 16th of Fehruary, 1824, on the prothonotary’s official bond.
    A case, of which the following is the substance, was stated for the opinion of the court below, to be considered as a special verdict.
    
      Timothy Matlack was appointed prothonotary of the District Court for the city and county of Philadelphia, by a commission dated the 28th tif February, 1821, and on the 6th of March, 1821, entered into a bond to the Commonwealth, in the penal sum of four thousand five hundred dollars, with William West and George Worrell, as his sureties. The bond, after reciting the appointment and commission of Mr. Matlack, as prothonotary, contained a condition in these words:
    '“Now, the condition of the above obligation is such, that if the above bounden, Timothy Matlack, shall, and does well and truly and faithfully, in all things, execute and perform the duties of the said office according to law, and shall also, well and faithfully account for and pay over unto the state treasury, all public monies which shall come to his hands from time to time during his continuance in the said office, and also shall, when thereunto lawfully required, deliver up the records and other writings with the seal to the said office belonging, whole, safe and undefaced, to his lawful successor therein, then this obligation to be void, or else to be and remain in full force and virtue.”
    Between the 15th day of March, 1823, and the 4th day of October, 1826, both days inclusive, the said Timothy Matlach received from John Goodman, Esq., his successor in office, and Randall Hutchinson, Esq., also his successor in office, the sum of nine hundred and two dollars and fifty-eight cents, at the days and in the sums mentioned in a certain account, a copy of which was annexed to, and made part of the case.
    The said Timothy Matlach received more than fifteen hundred dollars per annum, during his continuance, in the said office.
    The Commonwealth claimed, under the acts of assembly in such ease made and provided, the sum of four hundred and fifty-one dollars and twenty-nine cents, being fifty per cent, on the said sum of nine hundred and two dollars, and fifty-eight cents.
    Judgment having been entered on the 16th day of February, 1824, for four thousand five hundred dollars on the said bond, this sure facias was issued to recover the amount claimed by the commonwealth.
    The writ of scire facias was returned “ served,” as to William West, and “ N. E. I.” as to the other defendants.
    Upon the case stated, the District Court rendered judgment in favour of the defendant; whereupon a writ of error was taken out by the Commonwealth.
    In this court two questions were argued:
    1. Is Timothy Matlach bound to pay the Commonwealth the amount claimed?
    2. If he is so bound, is William West, his surety, liable upon the bond?
    
      Pettit, for the commonwealth,
    referred to the act of the 10th of March, 1810, sect. 1, Purd. Dig. 608. .Act of the 24th of March, 1818, Purd. Dig. 609. Commonwealth v. Fitter, 12 Serg. & Rawle, 277. Lea v. Yard, 4 Dall. 95. S. C. 3 Yeates, 344. Roth v. Miller, 15 Serg. & Rawle, 107. Commonwealth v. Wolbert, 6 Binn. 292, 296, 298. Carmack v. Commonwealth, 5 Binn. 184.
    
      J. Randall, contra,
    
    cited Jlct of the 13th of March, 1817, sect. 2, Purd. Dig. 423. Miller v. Stuart, 9 Wheat. 680. Arlington v. Merricke, 2 Saund. 411, (note.) Slibbs v. Clough, 1 Str. 227. Wright v. Russell, 3 Wils. 530. Montague v. Tidcomb, 2 Vern. 518. Harrison’s Index, 286. Warner v. 
      Racy, 20 Johns. 74. Quin v. The State, 1 Harr. & Johns. 36. Commomoealth v. Baynton, 4 Dall. 282. aid to carry into effect a gaming contract, but sometimes even gives its assistance to recover back money won at play. Sir Basil Firbrace v. Brett, 2 Vern. 70. 1 Fonb. 336. 2 Vern. 291. 14 Vin. Ab. Gaming, D. We have the full benefit of these authorities, because equity is part of the law of Pennsylvania.
    
   The opinion of the court was delivered by

Gibson, C. J.

There cannot be a doubt, that the prothonotary

himself would be liable; not, however, by force of the bond, but the act of assembly. Although it be expressed in the act, that he shall account as if he had been in office at the time of receiving, the plain meaning is, that he shall account as if the fees had been received when he was in office. He is to account only for the excess above a given sum, which it would be impossible to ascertain, as no one could tell what would have been the amount of his receipts had he remained in the office. The terms of the act of 1818, clearly embrace the case of the officer; but the surety is liable no further than he is. made so by the clear and explicit terms of his contract. The condition of the bond is, that the prothonotary “ shall faithfully execute and perform the duties according to law, and shall also well and faithfully account for, and pay over into the state treasury, all public monies that shall come to his hands, from time to time, during his continuance in the said office.” By the letter of the latter clause, the liability of the surety is restrained to monies received while in office. But it is insisted, that the accounting for fees received after the expiration of the official term, is, nevertheless, an official duty; because, fees being earned in an official character, could be recovered and accounted for in no other; consequently, that the surety is liable on the general clause for the faithful execution of the office. To this there are two decisive objections: the first, that the parties themselves, did not intend to provide for this part of the subject by the general clause, having provided for it specially; and the second, that the general clause could be made subservient to the purpose, only by straining and inference, which are never employed to enlarge the responsibility of a surety. The contract of suretyship is one of mere benevolence, and is not to be carried further than the natural import of the words, because it would be unjust to intend, that one who is to derive no benefit, would consent to be bound further than he chooses to express. In doubtful cases, therefore, the construction is to be favourable to the surety. I certainly do not pretend, that, at law, the liability of a surety, especially on a joint obligation, is to be distinguished from that of the principal; and if the prothonotary were before us, in an action on this bond, I would not hold him liable. But that the case of the surety should draw after it that of the principal, is surely more reasonable than the converse of the proposition.

To a common apprehension, then, an engagement for the faithful performance of an office, would seem to relate to its immediate duties, and not to those that are remote and consequential. But the act of accounting for fees, even while in office, is, perhaps, not strictly an official duty, as it relates to a tax on the accountant’s property, which is due by him, personally, and not in an official capacity. But there is, surely, nothing of an official cast in the act, after the functions of the officer have ceased, because a refusal to perform it would not subject him to impeachment. But the parties are not supposed to have weighed matters such as these. The natural and obvious purpose of the clause, was to give assurance of diligence and faithfulness during the tenure of the office, and not to continue the responsibility of the surety, indefinitely, afterwards.

Huston, J.

This case was argued on two grounds: 1. That T. Matlack is not liable; and, secondly, that if he is liable, yet his sureties are not.

Whether T. Matlack himself is liable, depends on the several acts of assembly.

The act of the 31st of March, 1777,1 State Laws, (M‘Kean’s,) 58, requires all prothonotaries to give bond, &c., &c., for the faithful execution of their offices, and for the delivery of all books, records, papers, and seals, belonging to their respective offices aforesaid, whole, safe, and undefaced, to the person who shall be appointed to succeed them. (See the preamble and schedule to the present constitution and article 1st, which provides that all laws of this commonwealth in force at the time of making the said alterations and amendments in the said constitution, and not inconsistent therewith, shall continue as if the said alterations and amendments had not been made.)

The act of the 10th of March, 1810, Purd. Dig. 608, enacts, that prothonotaries, &c., &c., shall keep fair and accurate accounts of all fees received for services performed by them or- for them in their respective offices; and shall annually furnish an account thereof under oath or affirmation to the auditor general, who shall examine the same, and, whenever the amount exceeds fifteen hundred dollars per annum, the auditor general shall charge the said officer fifty per cent, on the excess, which shall be paid by the said officer into the treasury of the state.

By the act of the 24th of March, 1818, Purd. Dig. 609, it is provided, “ In case of .the resignation or removal of any officer, who, by law is accountable to the state .for certain surplus fees of office, it, shall be the duty of his successor in office, who, from time to time, may receive and pay over such fees to his predecessor, to take duplicate receipts for the same, and to transmit one of the said receipts to the auditor general, together with a statement of such fees as may otherwise be received by the said predecessor, as far as he may be able to ascertain the same. And it shall be the duty of the auditor general to settle the accounts of the late officer, to whom such fees shall have been paid, and compel him to account upon oath, and to pay over such proportion of the arrearages of fees so received as would have been paid to the state, had he remained in office, allowing to such officer, in case of deficiency, in any year while he shall have held his said office, such sum as shall make up the whole sum he would have been entitled to have retained, free from any tax thereon.

It has been argued, that in construing the last sentence of the act of the 24th March, 1818, we must stop at the words had he remained in office, and that the latter part of the sentence has no connexion with or influence on the sense of the former. If .this were so, it would introduce a new chapter on construction, and lead to a mode of ascertaining the meaning of a law totally different from what has been used since reading and writing came into use. Though these laws are not written in the most perspicuous language,the meaning cannot be mistaken by any but one whose interest it is to mistake it. The construction is, that each officer within its provisions, has a right to, and is to retain fifteen hundred dollars each year he continues in office, and pay to the commonwealth the one half of any sum he receives above fifteen hundred dollars. If he receives fees for services performed while in office, after going out of office, he is to account precisely as if such fees had been received while he was in office. • If no year produced fifteen hundred dollars while he was in office, and he received fees after going out of office, the Commonwealth had no right to any part of this until he had made each year of the office produce fifteen hundred dollars. If fifteen hundred dollars per annum during his office is received, the commonwealth is entitled to half of all received afterwards; for no law ever contemplated that any one should continue to receive fifteen hundred dollars per year, after his office had expired.

The court is unanimous in the opinion, that Mr. Matlach, the officer, is bound to pay to the commonwealth the sum demanded.

But admitting that Mr. Matlach is liable, it has, however, been earnestly contended, that the defendant, his surety, is not. And, first, as to the law respecting the liability of a surety. The officer and the surety sign the same bond, and same condition, are bound by the same instrument; and I know of no principle of law, which carries the liability of the principal one jot beyond that of the surety, so far as depends on the bond, unless in consequence of something which occurred on the part of the obligee, after the execution of the bond, or of some fraud in fact or law, at or before the execution of the instrument.

I shall notice the cases relied on by the defendant. The first is in 2 Saund. 411, Arlington v. Merriche. A person was appointed deputy postmaster for six months, and gave bond with the defendant as surety for the performance of the duties of his office. His appointment was renewed, and he continued after the six months and became a defaulter; and in a suit on the bond, it was decided, that the recital of an appointment limited the obligation to that appointment, and that the surety was not bound for what did not occur under it. All the cases cited in the note go this length, and no further, and con-elude, that a surety is liable only according to and within the scope of his engagement. i

The case in 9 Wheat. 702, 703, does not carry the law, nor pro™ fess to carry it, beyond those cases. The only real contest there was, whether the default occurred under the appointment recited in the bond, or under a different one; and the only positions of general application are, “A surety is not to be held liable by implication, beyond the terms of his contract;- to that extent, and- in the manner and under the circumstances pointed out in his obligation, he is bound,-and no further.” The words of a judge are to be taken in reference to the case trying; that is in his mind—with reference to the facts of that case he is speaking. If this is not kept in mind, error and confusion will follow. The judge’s expressions are true in the case before him, perhaps in all cases; but he does not say or intimate that the instrument is to be construed in one way in a suit against the principal, and in a different way where a surety is defendant. And I do not know that any court ever said so. 20 Johns. 74, is a short and not very explicit case. There, a form of bond was prescribed-by law; the officer gave a bond essentially different from this form, as the court thought; and the case trying did not come within the provision of the bond given; that is not this case.

In 6 Binn. 292, Commonwealth v. Wolbert et al., the surety did not allege that he was not originally liable, but contended he was discharged by the conduct of the officers of the commonwealth. I shall not enter into a vindication of the policy of requiring sureties of public officers, because it needs no vindication, and because if it did, that cannot affect our decisions on those bonds. Is this within the true meaning and intention of the bond? - What do the words, “ Well and truly and faithfully, in all things, execute and perform the duties of the said office, according to law,” mean? The law directed the officer to pay over this money; he accepted the office on the terms of doing so; it was his duty to do so. Although it occurred after the office expired, yet it was a consequence of the office, arose out of it, or rather it was still á part Of it; as a sheriff may sell goods levied on while in office, may return writs, &c., after his office has. expired; andan auctioneer who has sold goods and taken notes while in office, may collect the money after he is out of office, and he and his sureties are liable to the party interested, if he does not pay that money to the person entitled.

■ The case in 4 Dall. 96, is much stronger than this. There were two cases on two several official bonds of auctioneers against sureties. In the one the words were, “If the said JR. S. F. shall well and faithfully discharge and perform all the duties of an auctioneer,” in the other, “ Shall well and faithfully execute the above office of auctioneer according to law, and shall from time to time well and truly account for all public monies which shall come into his hands, and pay the same into the treasury of the state,” &c. The suits were not by the state, but by individuals whose goods the principals had sold, and whose money they had collected and not paid over. Smith, J., says, Where there is a joint obligation, the law does not abstractedly, recognize 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 expression;” and Brackenridge, J., says the bond embraces every duty which the officer is bound to perform '; and judgment for the plaintiff was’ unanimously affirmed by the High Court of Errors and Appeals. According to this decision then, this first and general clause will embrace not only this debt, which it was the duty of the officer to pay to the state, but any money paid into court and which it was his duty to pay to a private suitor; and it further decides, that a second clause specifying an obligation to pay a particular claim; that is, specifying a particular duty, does not limit or restrain the general obligation to perform all the duties of the office. Besides what is called the second part of the obligation,. ie to pay into the state treasury from time to time all public monies which shall come to his hands during his continuance in the said office,” is referrable to a distinct matter. All recognizances in the sessions are sued in the Common Pleas, and the money when collected, is paid into court; so, all the fines on defaulting jurors, or for contempt, &c. &c. To these the officer has no right; they are emphatically public monies, which come in from time to time. The commonwealth’s share of that portion of fees which exceeds fifteen hundred dollars is not so distinctly public money, but is in effect the officer’s money; at least till the settlement of his accounts, or until its amount is ascertained in some other way.

To conclude, these official bonds are of immense importance in this country. The commission, though made out, is never delivered until the bond is executed. The safety of the citizens, and security of the money of the state, depend in a great degree on them: their object is open and well understood, their construction long and repeatedly settled. The sureties sign them with a knowledge of all this. The law is settled, (see the cases cited, and 15 Serg. & Rawle, 107,) that there cannot be one construction as to one obligor, and another as to a second obligor, (except as before stated.) For these reasons I have come to the conclusion that the defendant is liable, but a majority of the court think otherwise.

Judgment affirmed.  