
    Samuel Crocker, Treasurer, &c., versus Nathaniel Fales and Others.
    The bond given by a clerk of the Court of Common Pleas is no security for the fees of the crier of the Court, which by law are to be received by the clerk tod by Mm paid over to the crier.f
    t [By Rev. Stat. (c. 122, § 4) of Massachusetts, the crier receives $2 per day, to be paid out of the County Treasury. — Ed.]
    Debí upon a bond made by the defendants to the plaintiff, as treasurer of the County of Bristol, for the payment of $1000, and dated the 11th day of October, 1804.
    The defendants pray oyer of the condition of the bond declared on, which reciting that the said Nathaniel was appointed, by the justices of this Court, to be clerk of the Court of Common Pleas for the said county, the condition was, that he, the said Nathaniel, should well and truly discharge and perform all the duties of the same office, and keep_ up the records of the same seasonably and in good order, and make and keep a convenient alphabet to the said records ; and thereupon the defendants plead in bar, that the said Nathaniel hath well and faithfully discharged and performed all and singular the duties in said condition specified to be by him discharged and performed.
    The plaintiff replies, that, after the making of the bond declared on, and while"the said Nathaniel was clerk as aforesaid, namely, on &c., and on divers days and times between the said day and the first day of November, 1814, he did, by virtue of his said office, receive divers sums of money, namely, $ 150.79, to the use of one Oliver Soper, then and still crier of said Court of Common Pleas, * being the fees of the said Soper as crier aforesaid, and which sum the said Nathaniel, as clerk as aforesaid, ought, and was by law obliged, to pay over to the said Soper, whenever thereto requested ; but which he hath neglected and refused to pay over, though requested on, &c., at, &c.
    To this replication the defendants demur generally, and the plaintiff joins in demurrer.
    
      Tillinghast, for the defendants,
    contended, that the neglect charged in this replication was not within the condition of the bond. It is not within the intention of the legislature, in the statute which directs the bond to be taken,  and from which the condition of this bond appears to have been well made. That statute was a revision of a former provincial act of 7 Geo. 3, in which are expressly stated what acts or neglects shall constitute a forfeiture of the bond,  and they all refer exclusively to the keeping up of the records.
    But there is no authority for commencing this action for the benefit of the crier.  No authority has been shown, nor is the prosecution conducted by any authorized law officer of the Commonwealth.
    If judgment should go for the plaintiff, it must be for the whole penalty ; yet what is to become of the sum above what the crier claims ? If the clerk in this case has been negligent as to keeping up his records, the public will be without remedy in that regard. The plaintiff will have possessed himself of the money, and there will be no legal authority to take it out of his hands, to defray the ex-' pense of completing the records.
    
      W. Baylies, for the plaintiff.
    The only question before the Court is, whether the pleadings show a breach of the condition, and a for feiture of the penalty. The fee bill  shows plainly, that it is a part of the regular duty of the clerk to receive the crier’s fees, and to pay them over when demanded ; and the neglect of this duty is a breach of the condition. There is no occasion for any direction from the Court or for any public law officer to counte- * nance this action, except where it is brought for the deficiency of the clerk as to the records.
    The cause was continued nisi for advisement; and, at an adjourned session of the last March term in Suffolk, holden the following week,
    
      
      
        Stat. 1786, c. 57, § 3.
    
    
      
      
        Anc. Chart &c. 654.
    
    
      
      
        Commonwealth vs. Hatch, 5 Mass. Rep. 191.
    
    
      
      
        Stat. 1795, c. 41.
    
   Parker, C. J.,

delivered the opinion of the Court. The question in this case turns upon the assignment, in the replication, of a breach of toe condition of the bond. That breach is the non-payment of a sum of money received by the principal as the fees of the crier of the Court.

The condition of the bond is very general, providing only for the faithful execution, by the clerk, of his trust, and for the keeping up of the records; and this is in pursuance of the statute of 1786, c. 57, § 3, which provides for the safe keeping of the records. By the statute of 1795, c. 41, commonly called the fee bill, it is made the duty of the clerk to receive the fees of the crier for his use. The bond in suit was given to the county treasurer, to secure the faithful discharge of duty by the principal obligor, as clerk of the Court of Common Pleas, and to keep up seasonably the records.

It is contended by the plaintiff, that this breach is well assigned, because, it being made the duty of the clerk to receive the fees of the crier, it was his duty to pay them over ; and a failure of that duly upon demand is a breach of the bond. And this would be a just conclusion, if we were satisfied that the legislature, in requiring a bond in this form, intended to secure to individuals an indemnity for such omissions by the clerk as would be injurious to them. But, 0 upon duly considering the condition of the bond, and the statute upon which it is founded, we are satisfied that such was not the intent of the legislature.

There is nothing in the act which shows a design to protect individual sufferers against the negligence of the clerk to pay over moneys which may come into his hands. The bond is given to the treasurer of the county, as the representative, in this respect, of the inhabitants. The * penalty is discretionary with the Court between fifty and three hundred pounds, the largest of these sums being wholly inadequate, if it was intended to cover all the possible delinquencies of a clerk. There is no mode pi escribed by which the individual is to maintain an action upon the bond. Nor is there any authority given to the treasurer to deliver over the bond, or even a copy of it, or to pay over the proceeds of a judgment to him who shall cause the suit. Nor is the person, for whose use the action may be brought in the name of the treasurer, made liable to the costs, in case the suit should fail. The damages recovered by any one officer might consume the whole penalty, and the public be left without any of the security which was intended for the preservation of the records. In addition to which it is to be ob - served, that the statute makes such an appropriation of the sum, which may be recovered by the treasurer on a suit, as is wholly inconsistent with -the supposition that an individual has an interest in the bond.

The principles applicable to the bond which is given by a sheriff to the Commonwealth are wholly different. By law, the condition of that bond provides against all misfeasances and malfeasances of the sheriff. The penalty may be coextensive with his liabilities ; as the Court are to establish it without any limitation. Provision is also made for the delivery of a copy of the bond, and for the bringing into Court of the original, when an action is commenced upon it at die suit of ah individual. Further, there is a provision that he who procures the suit shall pay the costs, if he fail.

From all these considerations, we are clear that no breach of the bond sued in this action is alleged; and that the crier, who has sought this relief, must look to the clerk himself for retribution. It is best, perhaps, that those officers of the Court for whom the clerk is the collector should know that they depend on his personal responsibility; that they may adjust their claims and receive their dues at the end of every term, or make such a representation to the Court as will produce a removal of the delinquent clerk, * instead of suffering money to accumulate in his hands, thus giving him a temptation which might lead to a serious injury to his sureties-

jReplication adjudged bad.  