
    James Yard against Sarah Lea, Edward Burd and William M'Ilvaine executors of Thomas Lea.
    S. C. 4 Dall. 95.
    The condition of an auctioneer’s bond, under the act of 27th March 1790, is a security to the employers whose property is sold at vendue.
    Scire facias. The following case was stated for the opinion of the court, and agreed to be considered as a special verdict.
    On the 1st August 1791, John Chaloner, since deceased, was duly appointed and commissioned an auctioneer for the city of Philadelphia; and on the next day, he together with Leonard Dorsey, who is also since deceased, and the said Thomas Lea, who is also since deceased, as his sureties, executed a joint and several bond to Alexander James Dallas, the secretary of the commonwealth, in the penalty of 2000I., with a condition undei written, that “if the said John Chaloner should well and faith“fully execute the aforesaid office of auctioneer according to “ law, and should from time to time well and truly account foi “all public monies which should come to his hands, and pay “the same into the treasury of this state, agreeably to the “directions of the several acts of assembly of this common- “ wealth, which relate to auctions and auctioneers, then the said “obligation to be void, else to remain in full force and virtue.”
    On the 21st August 1793 while the said bond and condition were in full force, the plaintiff James Yard delivered to the said John Chaloner in his capacity of auctioneer aforesaid, certain goods, wares and merchandizes, to be by him sold, for the use and on account of the said James, which were accordingly so sold by the said John, to the amount or price of $6,792^%%, and the proceeds thereof were by him received from the purchasers there {front amount of sales) but the said John retained $5>on-Mr, of the money so received, and did not pay the same to the said James, and has died insolvent.
    It is agreed and admitted, that the sum of for duties due to the state of Pennsylvania, from the estate of the said John Chaloner as auctioneer, was recovered from the defendants, under the penalty of the said bond, and is to be deducted from it; and that if any dispute shall arise respecting the sum due to the plaintiff, under the remainder of the penalty, # ¿-, the same shall *be settled by a jury, or by referees o’ -I appointed in the usual mode by the parties ; and in that case, the sums mentioned in this statement, shall be fully open to examination and correction.
    The recovery and judgment recited in the scire facias, are admitted.
    The question submitted to the court, is, whether the plaintiff is entitled to recover the balance in or under this suit, against the executors of the said Thomas Lea ? If the court shall be of opinion in the affirmative, judgment shall be entered for the plaintiff; and if in the negative, then for the defendants.
    W. Lewis, pro quer. E. Tilghman, pro def.
    
    The case was argued last December term, by Messrs. Lewis and Rawle for the plaintiff, and Messrs. Tilghman and Ingersoll for the defendants.
    Arguments for the plaintiff. To form a correct judgment of the true meaning of the condition of the present bond, it will be necessary to take a review of the several laws, resjmcting auctions and auctioneers. The act of 26th November 1779, (Bayley’s ed. 147. Loose Acts 267) was intended to prohibit general sales by auction, with a few exceptions. The Supreme Executive Council were empowered to appoint and commission one officer, as auctioneer of the city of Philadelphia, who was directed to give bond with two sufficient sureties in 20,0001. “ 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.” This act was temporary, and declared to end with the war. Upon calculation of this penalty, at the rate of 384- for 1, agreeably to the scale of depreciation specified in the act of 3d April 1781, (1 St. Laws 882) it will be found to amount to 519]. 9s. 4d. This law was amended by an act of 23d September 1780, (St. Laws 864) whereby three auctioneers were to be appointed and licensed, one for the city, one for the Northern Liberties, and one for the district of Southwark, who were to give bond, with two sufficient sureties, in 20,000!. “for the faithful discharge of their “duties, and for well and truly performing the terms and pay“ments in and by this act directed and'required.” By the 3d section- hereof, the auctioneers were directed to pay 1 per cent, quarterly, on the amount of all the effects and property by them sold, into the state treasury. And by the 8th section, the rates of' their commissions on specific articles are ascertained *and settled. Computing this penalty at 72 for 1, the r.*. „ result in specie will be found to be 277I. 15s. 6Jd. And it L 33/ will be observed, that the duty to the state is first given by this law.
    A supplement to this act passed on the 13th April 1782. 2 St. Laws 56. It diminished the allowance made to the auctioneers, laid an additional duty of 1 per cent, on the gross amount of their sales, and declared in the 4th section, that “ the several bonds “ given by the auctioneers to the president, for the faithful performance of the duties of them required by the aforesaid act “ (of 23d September 1780) should be a security for the 1 per cen- “ turn imposed by this act.” In the 2d section, this proviso occurs, that “ any person or persons may contract and agree with “any of the said auctioneers, to pay them for'their services in “ the premises any less reward which they may be willing to “accept.”
    The act of 9th December 1783, 2 St. Laws 169, recites the former laws, and that the same had expired on the termination of the war, the latter acts being grafted on the act of 1779, and then makes the two last acts perpetual, except as is therein stated. It wholly drops the law of 1779.
    The act of 19th March 1789, directs that an auctioneer shall be appointed for the township of Moyamensing, prescribes his duties, and the form of his bond. 2 St. Laws 680.
    This was followed by “ an additional supplement to the several “ acts of assembly, respecting public auctions and auctioneers,” passed on the 27th March 1790. 2 St. Laws 777. Two additional auctioneers are hereby directed to be appointed by the Executive Council; one for the city, and one for the Northern Liberties. “They shall give bond to the president and his suc- “ cessors, with two or more sufficient sureties, in the sum of “ 2000I., 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.” The duties to be paid into the treasury on the sale of goods were reduced to 1 per cent.
    Under this act Chaloner was appointed auctioneer and the bond given. The condition of the bond in question varies in phraseology from that prescribed by the act, but it conveys the same meaning in substance.
    Finally, by the law of 26th February 1791, 3 St. Laws 9, licensed auctioneers were authorized to sell property at any place they might deem most beneficial, within the city, Southwark, the Northern Liberties or Moyamensing.
    -*-338] The question then is, whether the intention of the legislature *in the law of 27th March 1790, was merely to secure the duties payable to the state, under the auctioneer’s bond ; or whether it did not operate as a security also, for those persons whose property was sold at public vendue ? If the former is the true construction, it must be admitted to be a single case, and to differ from other bonds of public officers, as sheriffs, coroners, recorders of deeds, registers of wills, &c. and of administrators and executors. Whence could this distinction arise ? By the act of 27th March 1713, section 14, all bonds given by any officers or persons in office, are declared to be for the use of, and in trust for the persons concerned, and the benefit thereof shall be extended from time to time, for the relief and advantage of the party aggrieved, by the misfeasance or nonfeasance of the officers; and the 15th section prescribes the remedy by scire facias issued on the judgment had on the bond. 1 St. Laws 103. And the late Chief Justice in an action brought against Chaloner’s executors, on the bond in question, declared, that the person who first sues, and obtains judgment on an official bond, is entitled to the preference. 3 Dali. 501 (note.) The sales at vendue by individuals were prohibited in the city; they were obliged to put them under the direction and care of an officer appointed by law. It would be unjust indeed, that the auctioneer thus licensed by the state, should give bond to secure the one hundreth part of the amount of the goods sold to the commonwealth, and that the other ninety-nine parts should be neglected and sacrificed to the general will. Besides the general necessity of auctions in large, commercial cities, it is well known, that goods are frequently sold at vendue by merchants, to close the sales of adventures by their principals. If sureties are then absolutely requisite for the responsibility of the public auctioneers, they can have no reason to complain.
    The condition of this bond is, that Chaloner “ shall well and “faithfully execute the office of auctioneer according to law;” or as mentioned in the act of 1790, “shall faithfully discharge “ his duties, and well and truly perform the terms and payments “in and by the several acts directed and required.” It was his bounden duty to collect, and honestly pay over the monies he had received, to those whose property he had sold. Failing herein, he could not be said faithfully to execute his office or discharge his duties. Performance of the terms and payments directed and required by law, is not necessarily restricted to the 1 per cent, state duties ; nor can those words be supposed to harrow down the generality of the precedent expi'essions.
    It will however be urged, that the condition of the bond pre- # I scribed by the act of 1790, varies from that directed by 3391 the law *of 1779, and leaves out the word “employers.” We admit the propriety of considering statutes made fari 
      
      materia though expired or repealed, when we are fixing the true construction of another statute, every word of which however must have its full operation. The term duties necessarily implies those acts, which are incident to the office, naturally and of course. The phraseology of the latter law is more extensive than that of 1779; and the revenue comes in as a secondary consideration, grafted on the commercial interests of the city. The truth is, the legislature, in 1779, practiced a dangerous experiment, by going into a minute detail of the duties of an auctioneer, as will be seen by a reference to the different sections of the law. In 1790, their expressions are general, and descend not into particulars. But it cannot be conceived, that the legislature in September 1780, had totally changed the sentiments which they had adopted in November 1779, respecting •the duties of auctioneers, and made their official bonds an exception to general public bonds.
    It may moreover be objected, that 2000I. is a very inadequate security to the employers of auctioneers, who are entrusted with property to a great amount. But was not this sum a more adequate security than the 20,oool. bond in November 1779, which in express terms extended to employers, and as has been mentioned, was then worth only 519I. 9s. 4d.P We cannot say, that the 20,oool. mentioned in the law of 23d September 1780, was continental money. Because it must be observed, that on the 31 st May 1780, the operation of the tender laws was suspended for three months ; on the 22d September 1780, the suspension was protracted till the end of the next session; on the 22d December 1780, it was continued with some alterations ; and finally, on the 21st June 1781, the tender of all paper money was repealed. Another observation also occurs : An auctioneer is not like a sheriff, who continues in office for a certain period, unless convicted of some offence which incapacitates him. The former holds at mere will and pleasure, and may be removed on any application to the executive for misconduct in not paying over money. Hence the 2000I. is a more adequate security to the owners of property sold by auction, than may be pretended by our adversaries.
    The arguments for the defendants traced the subject of ven-due masters to a higher source. By an act of the late province, “for regulating pedlars, vendues,” &c. passed 14th February 1729-30, (Galloway’s ed. 155. Miller’s ed. 118) it is provided 'by the 6th section, that no persons, except as is therein excepted, shall expose to vendue any wares, &c. within the city of Philadelphia, unless he shall be first recommended by the may- or’s court to the governor, and shall have given security r* to the mayor of the city for the time being, for the use *- of the corporation, in a sum not exceeding 500I. “ for his honest “ and due execution of the office of vendue master within the “ city, and for the due observation of the ordinances of the said if city touching the regulating vendues, or public sales, or auc“tions, within the same.” The construction of this condition will not reach employers. The bond was to be given to the mayor for the use of the corporation, conditioned for the due observation of the city ordinances. This act so far as it respected auctions, was repealed by an act passed on 19th June 1777. (Loose Acts 48.)
    The words of the act of 1779 alone extend to employers in the condition of the bonds. If “faithful performance of the “duties of an auctioneer,” would include them, it was idle and superfluous in the legislature to use the subsequent words, “.for “the honest and just satisfaction and payment of his employers, “and every one of them.” It cannot be denied, that all the subsequent laws drop the term “employers,” and it cannot be supposed to have been done unintentionally. Under the laws of 1779, no duties were payable to the states on sales at vendue ; but the 1 per cent, duty arose under that of 1780. The legislature could not possibly have forgot the act of 1779 at that time, ■because the very title of the law, is “ an act, to alter and amend “ an act, entitled an act for the effectual suppression of public “auctions and vendues, &c.” The terms of payment in and by this act directed and required, have a clear obvious meaning, and can only be referred to this act of 1780. This act, as well as that of 1782, is only imperative on the auctioneer as to selling, not as to collection of the money. The monopoly is confined to the former act. The 3d and 4th sections of the latter act confirm this construction. The auctioneers are empowered to demand and receive the additional one per centum, and pay the same to the state treasurer, and the bonds shall be a security for the payment thereof. The proviso in the 2d section is, that the party may agree with the auctioneers, to pay him for his services in the premises, any less reward which he may be willing to accept; the words do not run for his services aforesaid. When a factor sells goods, and the principal is announced, a payment to the factor against the will of the principal would be bad. So as to auctions, the payment of the money might be modified by convention between the parties, and no law forbids it. If this bond take effect, it must be under the provisions of the act of 27th March 1790, whereon it is founded. If no technical exception is taken to the form of the condition, as not precisely pursuing the expressions of the law, the words 5,, -, *of it cannot possibly warrant a construction not sup-341-! ported by the law, and the question is, whether the defendants are liable in this action, under the words or spirit of the act of 1790 ?
    It is a fixed principle in law, that as to sureties, a contract shall not be extended by construction. If the condition here had merely been “the faithful discharge of the auctioneer’s “ duties,” the plaintiff’s construction that it extended to employers, might be correct, if the expressions in the act of 1779 had not occurred; but when. it goes further, and speaks of “ well “ and truly performing the terms and payments in and by this “act to which it is a supplement required,” the generality of the first words is confined and restrained by the subsequent expressions. The rule, expression facit■ cessare taciturn, holds peculiarly in the present instance, when we consider that the act of 1779 expired with the war, and was never revived. There were seven auctioneers in the city and its environs, and merchants and others had the choice of them. No auctioneer could expect employment, unless he consulted the interests of his customers, and regularly paid over the money he had received. The dependence of the employers rested on the integrity and punctuality of the auctioneer, and not on the bond for 2000I. which was very incompetent for their security. How often do the sales of a day, or even a single hour exceed that sum ? To this may be added the remark of the plaintiff’s counsel, that the auctioneers well knew the tenure of their office was at mere will and pleasure, and that they could not expect to hold it, while they retained the money of others in their own hands. This reflection must naturally operate in a powerful manner on their conduct. In 1779 the trade of the city was comparatively small 'by reason of the war, and though we now talk of scaling the money of that day, yet congress and other public bodies then affected to speak of the continental currency as real specie, and would not hearken to the idea of its being depreciated. We may reasonably conclude, that the law has distinguished between the auctioneer’s bonds, and those of sheriffs, coroners, recorder, &c. when we find that in the latter instances, they have been declared to be in trust for the parties aggrieved, whose remedies have been prescribed by scire facias, and no such provisions have been made in the former. The late Chief Justice expressed no opinion, that this was an official bond, of which the employers could have the benefit.
    The act of 29th September 1791, (3 St. Laws 131) exonerating the sureties of Alexander Boyd, from the payment of certain monies found due to the commonwealth, fur- *- 342 nishes a strong proof of temporary legislative exposition of the effect of auctioneer’s bonds. There the state had recovered against Boyd 374I. os. 2d. for duties by him received as auctioneer for the northern district of the city. He obtained possession of his former bond from some of the officers of government, and produced the same to his new bondsmen cancelled, whereby a false credit was given to him, and government participated in the deception by the neglect and improper conduct of its officers, inasmuch as he was largely in arrears for duties at the time of his re-appointment; the legislature therefore, discharged the sureties from the sum recovered against Boyd, at the suit of the commonwealth. If at this period, the bond was .considered as a security for the employers, by any of the departments of government, would its officers have surrendered the same, and thus sacrificed the interest of individuals protected thereby ? Or would the legislature in any shape have sanctified such a measure ? The sureties have remained undisturbed by individual claims since 1791.
    The plaintiff in reply. Though the law of 1729-30, directs the bonds of the vendue masters to be given to the mayor of the city, for the use of the corporation, it does not follow, that the rights of individuals are excluded thereby. The bond was conditioned “for the honest and due execution of the office of ven-“due master,” See.
    
    It is impossible to suppose, that the owners of goods can maintain a suit for goods sold under the auction laws in his own name. An auctioneer employed to sell the goods of a third person by auction, may maintain an action for goods sold and delivered against the buyer, though the sale was at the house of such third person, and the goods were known to be his property, ’i H. Bla. 81. In that case, the buyer had paid the auctioneer ;part of the amount of the goods sold, and put a receipt into his hands for a debt due to him from the owner, being the residue thereof; and it was held, that an auctioneer has a possession, coupled with an interest, in goods which he is employed to sell, not a bare custody, like a servant or shopman ; though, he is like a factor in some instances, in others the case is much stronger with him than with a factor. In Willing, Morris and Swanwick v. Rowland, in 1791, the plaintiffs sent goods to John Mease to be sold at auction ; the defendant became a purchaser and claimed a demand which he had against Mease ; and it was determined that the former owners could not maintain the suit. The posing - *tion, that a principal may maintain an action for goods 3431 so]c] by his factor, on the custom of merchants and convenience of commerce, may be correct. The factor is the mere agent or servant of the principal, in whom the property of the -.goods remains. Cowp. 255. But the factor cannot be resembled to an officer appointed by law to sell goods. Here the plaintiff was prohibited from selling his own property at vendue, and could not support a suit in his own name, on a sale by the public officer. What right could he have to receive the 1 per cent, for the state duty ? How could the duties be collected on a great number of sales, of goods of different owners, except by the auctioneer himself ? Would the receipt of any of the owners bar the state of their demand against the purchaser ? The proviso in the act of 13th April 1782, does not confine the duty ' of the auctioneer to' the mere act of selling. The duty of collecting the money is imposed on him by the 2d section ex- ' pressly; and the terms of the proviso, for his services in the ' premises, necessarily must relate to both acts.
    Nothing solid can be inferred from the law of 29th September 1791, which can influence the question before the court. There the legislature interfered, merely as to the rights of the state, in giving relief to the sureties, for want of a Court of Chancery in a case of supposed deception. If Boyd had been indebted to his employer, under his first appointment as auctioneer, the legislature could not constitutionally have interposed. But it neither appears that he was so indebted, or that the delivery up of the bond was approved of or countenanced by any expressions in the law.
    The judgment of the court was delivered in this term by Smith and Brackenridge, Justices, Shippen, Chief Justice, and Yeates, Justice, declining to take any part in the decision, on account of their connection with the defendants.
    
      
      See the circular letter of Mr. Jay as secretary of congress, unanimously agreed to by that body on 13th September 1779. Journ. Cong. 259.
    
   Smith, J.

I will state the several acts on the subject, making such remarks on each as occur in stating it, in order that I may more briefly and clearly make the application of them, on a view of the whole connected.

He then stated in a particular manner the laws which had been cited by the plaintiffs’ counsel in the beginning of their argument, and proceeded thus :

The meaning of the proviso in the 2d section of the act of 13th April 1782, is obvious. There being then so many auctioneers, and every person meaning to employ any of them, *having his choice, there would be a competition of course; and where the property to be sold was large, or [*344 where the articles were of high price, some of them might be willing to take a less commission than that the law would allow them; none of them however were obliged to take less. No argument can be deduced from this provision on the present occasion; because it is not found, nor even alleged, that John Chaloner agreed to receive less than the recompence allowed by law, for his services in the premises.

It is stated, and has been admitted in the argument, that John Chaloner was appointed, and the bond in question given under the act of assembly of 27th March 1790. And the question, whether it extends to the employers of the auctioneer against his bail, the auctioneer having made default by not paying the plaintiff the sum stated in the case, or verdict, we must now decide.

It was laid down by the last counsel in behalf of the defendants, as a general rule, that as against sureties, bonds are not to be extended beyond the letter. No authority was cited in support of the rule; but Justice Buller lays down the same rule in 2 Term Rep. 370. In strictness, the term surety in a bond is not known in law. All who bind themselves to pay are equally obligors. But what is the letter of the bond on which we are to decide ? “That if the said John Chaloner should well “and faithfully execute the aforesaid office of auctioneer accord“ing to law, and should from time to time, well and truly ,ac- “ count for all public monies which .should come to his hands, “and pay the same into the treasury of this state, agreeably to “the directions of the several acts of assembly of this common- “ wealth, which relate to auctions and auctioneers, then,” &c.

What are the duties of the auctioneers required by the several acts of assembly ? Selling at auction, collecting the money, and paying over the same without loss or waste, and paying over I per cent, to the state. For the performance of these duties they receive their recompence. These are the terms and payments required by the act of 27th March 1790, according to which the bond in question was given, and the several acts of general assembly, to which that act was a supplement.

The meaning of the expressions, that as against sureties, bonds are not to be extended beyond the letter, is plainly this, that the surety is not liable further than the true intention and meaning of the parties, expressed in the instrument, and the legal construction of the words used make him liable. But so far he is liable, and the principal is no further answerable. Both were bound to know the laws, according to which the bond was given. * There is a case, not cited by the counsel on either *345] side, jn which the liability of both is carried much further than is necessary to carry it in this instance. It is carried according to the true intent, meaning and understanding of both, beyond the strict letter of the condition by two juries, (against the bail only, and by the first jury seemingly against the opinion of the court,) by the Lord Keeper and by the House of Lords. It is Machen and Fortune v. Stanyon. 1 Bro. ParL. Cas. 87.

Take a view of all the offices created by the legislature of Pennsylvania, as well before as since the revolution, and we must lay it down as a general rule, that where the officer in offices created by the acts, is necessarily entrusted with the money of individuals, or to perform a duty which he alone can perform, in the due performance of which individuals are interested, the wisdom and justice of the legislature have been manifested in prescribing that the officer shall give bond with sufficient sureties for the faithful payment of those monies, for the faithful performance of those duties; as in the cases of sheriffs, coroners, administrators, in some instances executors though ajrpointed by testators, recorders of deeds, registers for the probate of wills, land officers, surveyors, &c. All such bonds are declared to be, to and for the use of, and in trust for the persons concerned, and that the benefit thereof shall be extended from time to time for the relief and advantage of the party grieved by the misfeasance or nonfeasance of the officers. 1 St. Laws 103, § 14.

It has been contended, that although the sale must be made by the auctioneers, yet the owner may collect the money. The uniform practice under an act affords always a powerful help, and generally a sure guide in the exposition of it, where the words are doubtful. The uniform practice under these acts has been, that the auctioneer has collected the money and .paid it over. Indeed, how could-the owner of the goods, sold at auction under -the law, support an action against the buyer for goods sold and delivered ? It is said by the defendant’s counsel that he can, because the auctioneer is his agent, and that he who sells by his agent, sells by himself, by the application of the maxim, qui facit per almm,facit per se. I .agree, that where the principal can do an act, if he voluntarily appoints another to do that act, it is in contemplation of law done by himself. But here the plaintiff, the employer, could not do the act himself, and therefore a sale by the auctioneer is not a sale by the employer, nor could a declaration upon it, as such, be supported. Would even payment to the owner, without the order or approbation of the auctioneer, be a bar to an action brought by the auctioneer ? We know in fact that the sales are made by the auctioneer in his own name, that *the buyers of goods at the auction stores very seldom know who is the owner, nor [*346 does the owner inquire who is the purchaser, and that auctioneers frequently advance monies on goods delivered to them for sale, and therefore the argument can have no weight. 2 Stra. 1182, is a strong case to prove, that on such sale the vendee is not answerable to the owner. Should the auctioneer be considered as a factor, he is a factor acting upon a del credere commission, in which case the buyer can even set off any demand which he may have against the factor. 7 Term Rep. 259. 2Bac. 124-5. (last edit.) Besides, the auctioneer alone can recover his own commissions and the one per cent. duty. -Will it be contended, that every purchaser of goods at vendue may be liable to two actions'for the goods of every employer, one by each employer and another by the auctioneer ? By the act of 26th November 1779, only one auctioneer -could be appointed, who was to give bond with security in 20,oool. which reduced by the scale, is not quite 520I. This bond was in express terms “for the payment “of his employers.” Each of the many auctioneers in 1790 was to give bond in 2000I., conditioned as I before stated. Can it be supposed, that while the legislature increased the security near fourfold, they could mean to extinguish from 94 to 98 parts in 100 of the value of what was to be secured, and to secure only one per cent. ? What! compel every person who is obliged to have his goods sold at vendue, to entrust them to an officer of their own creation, and of the appointment of the executive, over whom the employer has no controul, and not oblige him to give security, contrary to uniform legislative practice ? Nothing short of express words would warrant us in accusing the legislatures who passed the several acts from 1780 to 1790, (inclusive,) which have been cited, of such want of wisdom and justice, of sporting with at least 94 per cent, of the property of the needy part of their fellow citizens, and studiously securing one per cent, to the state! The law of 13th April 1782 goes very far indeed, when it declares that the bonds given by the auctioneers under the act of 23d September 1780, should be a security for the payment of the additional one per cent., imposed by the act of 1782, as before stated. I rejoice that we will not probably ever be required to decide upon this part of the act of 13th April 1782 !

*347] Although the sum in the bond given by the sole auctioneer who could be appointed by the law -of 1779, to whom alone all the property sold at auction in the city was entrusted, was deemed a sufficient security ; although that sum is increased now near four-fold, and the business is divided among so many auctioneers, and the owner has the choice of any of them, yet it is *contended that the sum is too small, and that it would not be a real security ; and therefore, because it is inadequate, it cannot be supposed that it extends to employers, but must be confined to the payment of the one per cent., for which alone it was adequate. It was answered at the bar, that this .■security was larger in proportion to the trust than that given by sheriffs. Let me add, that as every person intending to sell goods at vendue may choose which of the auctioneers he pleases, he has the additional security of the reputation which the auctioneer has acquired. Scarcely one yvho has occasion to send goods to avery large amount to be sold at vendue, but may be informed by his mercantile Triends pretty exactly how far he may trust the auctioneer, taking into view the solvency of his sureties. ■Besides, generally speaking, the auctioneer must pay over the money immediately after the sale of the goods ; he occasionally advances a certain proportion of the goods, as before observed. If he should by trifling, neglect or misapplication of the money, withhold payment for only a few days, the alarm is spread through the coffee-house and city immediately, and his credit becomes blasted. There is little danger that he will be again trusted, till he shall not only have made complete payment to the party complaining, but also satisfactorily account for his delay. Sheriffs, on the contrary, may frequently keep in their hands all the monies which they have been collecting for three or four months, without legal censure: suitors may complain, but they cannot employ another sheriff on a future occasion. These observations form a full answer to the arguments urged from the supposed inadequacy of the security ; the observation of the counsel for the plaintiff, that few persons applying for the office of auctioneer could procure bail in large sums, has some weight also.

I am conscious that I listen to the arguments of counsel in every case with attention. I will not say that in this case I listened with more than usual attention. I certainly did not employ less, especially as we and the parties have been deprived of the abilities of our elder and more experienced brothers. Judges cannot even in their judicial capacities entirely divest themselves of the feelings of men. The humane mind generally sympathises with bail, who are obliged to pay for the default of the principal, without a probability, a possibility of reimbursement.

This is not only the case of bail, but the widow and orphan of that bail must pay the money. It is cause of much consolation to us, that in this case the affected parties are blessed with such affluence that they will scarcely feel the loss. But howev*er painful to our feelings, we would be obliged to give ^ „ the same judgment, were it to draw the tear from a widow’s [*348 eye, or snatch a morsel of bread from the orphan’s mouth.

The case was exceedingly well argued on both sides. Every thing which legal learning, abilities and ingenuity could suggest, has been urged on the part of the defendants. In the arguments on the part of the plaintiff, equal talents were displayed, and forced conviction on my judgment. The counsel for the defendants have not, to my mind, been able to explain away or weaken the force of the plain, natural and reasonable meaning of the words upon which the plaintiff founds his claim. A full and to me an irresistible answer has been given by the counsel for the plaintiff. My opinion therefore is, that judgment be entered for the plaintiff.

If I err, I have this further consolation, that my error will be rectified in a superior court.

Bracicenridge, J.

The object of the first vendue law, which is of February 14th 1729-30, is stated in the act to be “to pre- vent sales at unreasonable times, in deceit of the buyers, and “to the great annoyance of the inhabitants, by reason of the “ many idle and disorderly persons assembling themselves to- “ gether in the night time, in the open streets, at the said ven- “ dues or public sales.” By this act, bond must be given to the mayor, for the use of the corporation, for the honest and due execution of the office of vendue master, and for the due observance of the ordinances of the said city, touching the regulating vendues, or public sales, or auctions within the same. Prov. Laws 155, (Gallow. edit.) Whether this bond was construed a security merely for good behaviour, the holding of the vendues at reasonable times and seasonable hours, and fair dealing to the purchasers, and the due observance of the ordinances of the corporation, or whether also it enforced the doing justice to the owner of the goods sold, is a question of the same nature with that before us. “The honest and due execution ” of the office of vendue master would seem to embrace it.

By the act of 26th November 1779, the auctioneer before he enters on the duties of his office, shall become bound with two sufficient sureties, conditioned “ for the faithful performance of “the duties required of him, and for the honest and just satis“faction and payment of his employers, and every one of them.” A recompence is provided for selling, collecting the money, and paying over the same without loss or waste.

By the act of 23d September 1780, the condition of the bond to be given is “ for the faithful discharge of their duties; and for * I “ *well and truly performing the terms and payments in *349] "and by this act directed.” The penalty is nominally the same, as in the former act, 20,000l.

By this act for the first time, a centum is reserved payable to the commonwealth. But would it be a reasonable construction to say, that the adding another obligation, or binding the auctioneer to do something more than he was bound to do before, reduced the condition of the bond, and restrained it to this additional duty of his office ? The preceding clause containing the condition of the bond has a sweeping effect, and would seem to comprehend all that was specified in the former act or contemplated therein, “the faithful discharge of their duties, and for well “and truly performing the terms and payments in and by this “act directed and required.” It was a duty before to pay over, ajid would seem to remain a duty still. A fair construction of the condition would seem to be, not only a discharge of duties generally, but in particular of those added by this act.

By the act of 27th March 1790, under which the bond in question was given, the condition is in the same words as in the preceding act, and would seem to me to carry the same construction, terms and payments extending to the amount of sales for the owners ; for, in several of the acts of general assembly, to which this is a supplement, it was specified as an .object. This clause would seem to me to settle it, “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.” All duties and obligations are embraced. Several acts to which this is a supplement, made the paying over the money to the employers expressly a duty.

The reducing the penalty of the bond from 20,000!. to 20001. is a presumption, that the object of the security was reduced. But this presumption is rebutted and explained, by the relative value of the current medium, at the different dates of these acts.

The inadequacy of 2000I. specie, which in fact was more than 20,oool. in bills of credit at the time, to cover the amount of sales made, and secure the owners of goods, also forms a presumption, that it was not intended to cover those sales, and comprehended only the centum coming to the treasury. But this is explained by considering, that no owner is obliged to ven-due his goods. The venduing goods was in fact not originally favoured by the law. It is a part of the preamble of the act of 26th November 1779, that “whereas the restrictions and prohi“bitions heretofore laid upon sales by auction or vendue, have “not proved effectual; for remedy whereof, be'it enacted,” &c. Venduing was barely permitted or tolerated, under certain *restrictions and regulations, but not encouraged. But if *350] all that security is not produced for the owners of goods, which might have been by a higher penalty, it does not follow that they should be considered as having none at all, Independent of the bond, he has the additional security of the estate of the delinquent auctioneer, whatever it may be. He has the power of complaining on any delinquency to the executive authority by whom this officer is appointed, who can remove him at pleasure.

Cited, approved and followed in.5 S. & R. 29; 1 Watts 438; 8 Watts 160; 39 Pa. 177.

That the owner of goods can forbid payment to the auctioneer and collect himself, cannot be. The auctioneer has a lien on the goods brought to him, not only for his commission, but for the centage to the revenue ; and to separate these before collection, on a variety of articles, and to different purchasers, is impracticable.

From the necessity of the case therefore, the law would seem to give the auctioneer the power to collect the money, and as he is morally bound to pay it over to the employer, I am disposed to think him- legally bound also, under the condition of the bond, and that this duty is within the express words of the obligation. “The said John Chaloner shall well and faithfully execute the “said office of auctioneer according to lawand therefore the distinction, if any exists between the principal and securities, does not come into view in this case. “To .execute well and “faithfully the office of auctioneer according to law,” is equally comprehensive and the same in substance with the words of the act, “a faithful discharge of his duties.” The penalty is small to be sure, to cover to such extent; but it would scarcely be a practicable thing to find an individual who would be willing to take the office, and could find security to a greater amount, or to an indefinite extent. It would reduce the thing to a company affair, an association which could alone be competent to a respon - sibility of so high a nature.

These observations mark the inclination of my mind. I shall give my opinion in favour of the plaintiff.

This judgement was afterwards affirmed on a writ of error to the High Court of Errors and Appeals, January 24th, 1804. 4 Dall. 95.  