
    [Pittsburg,
    September 26, 1835.]
    BEESON and others, Administrators of BEESON, against The Commonwealth, for the use of COLLINS.
    IN ERROR.
    The sureties to the Commonwealth, in a sherifif’s official bond, are liable to an action at the suit of the Commonwealth, seyerally as well as jointly.
    A declaration in a suit against the sureties in a sheriff'5» bond, may be amended, notwithstanding five years have elapsed from the date of the bond.
    Writ of error to the Court of Common Pleas of Fayette county.
    The record returned on this writ was a summons in debt, at the suit of the Commonwealth of Pennsylvania, for the use of Thomas Collins, issued the 2d of February, 1822, against Judith •Ann Beeson, Henry Beeson,‘‘Henry TV. Beeson, Isaac Beeson, and Iieuben Baily, administrators of Jacob Beeson, deceased. Returned served on all the defendants.
    The declaration filed was, that whereas the said Jacob Beeson, in his life time, by his certain writing obligatory, sealed with his seal, and now shown to the court here, dated the 23d day of October, 181?, acknowledged himself to be held and firmly bound unto the commonwealth of Pennsylvania, in the sum of ten thousand dollars, to be paid to the said commonwealth, for the uses, &c. declared and appointed, in and by an act, entitled an act directing sheriffs and coroners to give sufficient sureties for the faithful execution of their official duties, and for other purposes. The condition of which obligation is, that if John Withrow shall, and do well and truly serve and execute all writs, &c. of the commonwealth, to him directed, as sheriff of the county of Fayette; and shall and do, from time to time, upon request to him for that purpose made, ike. Nevertheless, the said commonwealth, for the use aforesaid, say, that after making the said writing obligatory, the said John Withrow did not, as sheriff of the county aforesaid, without delay, and according to law, pay, or cause to be paid to tbe several suitors and parties interested in the execution of such writs and process, their lawful attorneys, &c. all and every sum and sums of money, to them belonging, which came to his hands. [But on the contrary, in case No. 40, of December term, 1818,-in the Common Pleas of said county, Thomas Collins v. Philip Victor, judgment was obtained by the said Collins, against the said Victor, for the sum of 'three hundred and forty-six dollars and ninety-seven cents, with costs of suit, and an execution issued to December term, 1818, No. 15, for the aforesaid debt, interest, and costs; which execution, the said John Withrow, did not without delay, £kc., serve and execute; nor did he, upon request to him for that purpose made, pay or cause to be paid, to the said Thomas Collins, the aforesaid sum of money, or any part thereof; although the said commonwealth in fact saith, that the debt, interest, and costs, directed to be levied by the said sheriff, on the said execution, was whilst the said execution was in the hands of the said sheriff, and after its delivery to him, and before the return day thereof, (viz,) on the 7th of September, 1818, levied and made by the said sheriff, and received by him, by virtue of the said execution ; and the said sheriff, although often required, hath refused to pay over the same, or any part thereof, to the said Thomas Collins, to the damage, &c.]
    The defendants pleaded nil debent, and payment, with leave to give the special matter in evidence. The plaintiff replied non solverunt, and issues. A verdict was rendered in favour of the plaintiff for three hundred and forty-five dollars and sixty-four cents, and judgment thereon.
    The following errors were assigned:
    
    1st. That the writing obligatory, and the condition thereof declared upon, if in fact there be any such, is null and void.
    2d. The defendant could not be legally chargeable with a breach, untill request made by him, and refusal by John Withrow, sheriff of Fayette county; but the plaintiff hath not alledged any request made of the said sheriff.
    3d. That the plaintiff made proferí of the bond, though directed by the act to be transmitted to the office of the secretary of the commonwealth.
    4th. That in the declaration, filed in this case, on the 6th of February, 1823, to which the defendant pleaded, there was no breach ofthe condition of the said writing obligatory alleged with legal precision; and that it was not within the legal power or discretion of the court below, to permit the plaintiff to amend his declaration, by adding the preceding allegations inclosed in brackets; in the copy of the narr which, by the endorsement of the clerk, was filed on the 16th of March, 1825, especially in a suit against a surety, after the time had elapsed, within which suit might have been instituted against him. The writing obligatory declared on, is alleged to have been dated on the 23d day of October, 1817. And if it were an official bond of John Withrow, sheriff of Fayette^ county, no suit could be sustained thereon, against a surety, alter the lapse of five years after the date thereof, by the fourth section of the act of the 28th of March, 1803.
    
      Lyon, for the plaintiff in error,
    now relinquished the second and third errors assigned, and insisted,
    1st. That the act of assembly authorised only a joint suit against the sheriff and his sureties: and here the plea of nil debent put the validity of the bond in issue.
    4th. The court had no right to allow an amendment of the declaration to affect a surety, after the five years limited for bringing suit, had elapsed. Besides, it does not appear that the court did give permission for the amendment, or that consent was given-
    
      
      Alexander, contra.
    1st. There is nothing in the act of assembly, like an injunction, to bring a joint suit only. The parties are left to their discretion as to bringing suit: the bond is to be taken jointly and severally. Some of the obligors in this bond are dead. Now, how can a joint suit be maintained against the living obligors and those who are dead ? Besides, if one of several joint obligors be omitted, it must be taken advantage of by plea in abatement.
    4th. As to the amendment of the narr, it does not appear when the amendments were made, or that they were made without permission of court, or consent of parties, and ought not to be presumed to have been so.
    Lyon, in reply,
    1st. This proceeding is sui generis, founded on the act of assembly, and it provides for a remedy against the heirs or representatives of those obligors who die first, though the action be joint against all: at least the court may provide a remedy in order to carry the law into-effect.
    4th. Such amendmets should not be allowed as cure substantial defects against sureties.
   The opinion of the court was delivered by

Txlg-hman, C. J.

This is an action in the name of the commonwealth, for the use of Thomas Collins, against the administrators of Jacob Beeson, deceased, on a bond, in the penalty of ten thousand dollars, in which the said Jacob Beeson and others, were bound to the commonwealth, as sureties for John Withrow, late sheriff of "Fayette county. The plaintiff obtained a judgment in the Court of Common Pleas, which has been brought up by writ of error. Several errors were assigned., but only two have been relied on. 1st. That a several action, against one of the obligors, cannot be maintained. 2d. That the Court of Common Pleas had no right to grant the amendment which was made in the plaintiff’s declaration, at the time it was made.

1st. The bond on which this suit was brought, was given by Sheriff Withroio and his sureties, in pursuance of the act directing sheriffs and coroners to give sufficient sureties, See. passed the 28th of March, 1803, (4 Sm. L. 45.) The counsel for the defendants contend that it was the intent of the act, that no suit should be brought but against all the obligors jointly. The form of the bond is prescribed by the act of assembly; and the first thing Which strikes us, is, that the obligors bind themselves, their heirs, executors, and administrators, jointly and severally — -a strong indication, that it was intended, they should be liable to a joint or several action. The obligors are also to enter into a recognizance,- in which they acknowledge themselves' to owe unto the commonwealth a certain sum, to be levied and made of their several goods and chattels, lands and tenements. By the fourth section of the act, it is provided that all the lands, tenements, and hereditaments, which such sheriffs and coroners, and their sureties, shall possess, or be entitled to, in every county within this commonwealth, shall be bound by the recognizance, as effectually as a judgment in the Court of Common Pleas of all the counties aforesaid, might or could bind the same; “and whenever the commonwealth, and any individual or individuals, shall be aggrieved by the misconduct of any sheriff or coroner, it shall and may be lawful, as often as the case may require, to institute actions of debt, or of scire facias, upon such recognizance, against such sheriff or coroner, and their sureties, their heirs, executors, or administrators, or actions of debt upon such obligations, against such sheriffs or coroners, and their sureties, their heirs, executors, or administrators, 4’c- fyc. Provided that no action shall be sustained against such sureties, their heirs, executors, or administrators, unless the same be instituted within five years after the date of such allegation or recognizance.” It is granted, that the act of assembly under which this bond was taken, might have prescribed the remedy on it, and the exclusive form of prosecuting that remedy. But, it is not perceived that there was any intent to restrain the commonwealth to a joint action. The action is directed to be against “ the obligors, their heirs, executors, and administrators P’ Now, it having been before directed, that the obligors were to bind themselves, their heirs, executors, and administrators, jointly and severally; the plain meaning seems to be, that the action is to be according to the nature of the obligation, that is to say, either joint or several, at the election of the obligee, The only argument in support of a joint action is, that thereby, the burthen would be more equally divided between the sureties. But although sued severally, the one on whom the bur-then falls, may have an action against his co-sureties, for contribution. The question, however, is, not what would be most convenient to the sureties, but what has been provided by the act of assembly. I have said before, that there are no words limiting the commonwealth to a joint action, and the impropriety of such a limitation is evident, from its extreme inconvenience. Suppose one of the obligors to be dead, how could a joint action be maintained against his representatives, and the surviving obligors ; and what kind of a judgment could be rendered in such an action? There is no provision for it in the act of assembly, nor are there any known forms to which it can be reconciled. Again, it is expressly provided, that no action shall lie against the sureties, or their representatives, after five years from the date of the bond. Yet an action will lie against the sheriff himself, after the expiration of the five years. But how is this to be done, if only a joint action can be maintained on the bond ? In short, the construction, contended for by the defendants, is pregnant with difficulties without. end, and, therefore, should not be adopted, unless plainly required by the words of the law. But I can find no words which, intimate, even in a remote degree, a design to restrain the commonwealth to a joint action. My opinion therefore is, that the action may be either joint or several.

2d. It does not appear by the record, at what time leave was given to amend the declaration; but to give the defendants the whole force of their exception, we will suppose that five years, from the date of the bond, had expired, before the granting of the amendment, and, consequently,, if the plaintiff had failed in this qction, the sureties would have been protected from another suit, by the lapse of the five years. The act of assembly, authorizing courts to permit amendments, has no limitation in point of time; an amendment may be granted any time, even after the trial has commenced; The object was, to obtain justice, without regard to form. It often happens, that it is not discovered, until the evidence has been gone into on the trial, that the plaintiff has a good cause of action, to which the form of his declaration is not adapted. Now this is the very case, for which the act of assembly intended to provide a remedy. But the defendants say they are sureties — and what then ? Ought not sureties to render substantial justice, according to the nature of their undertaking ? What right have they to call on this court! to shield them from justice, under the cover of form. If five years had elapsed, before the commencement of the suit, they would have had a substantial defence. But being commenced, within the five years, they have had the advantage which the law intended, that is to say, they have had early notice of their danger; they have been warned to look to the sheriff for indemnification, and to collect all the evidence which was necessary for their defence. There was no reasons, therefore, why the court should have refused the amendment, asked for by the plaintiff. It appears to me that it was their duty to grant it, and indeed it would have been error to deny it.

I am of opinion that the judgment should be affirmed.

Judgment affirmed-  