
    Lyon and others executors of Lyon against Adams and others Commissioners of Cumberland county.
    Iñ Error.
    
      Monday, October 5.
    
    WRIT of error to the Court of Common Pleas of Cum-her land county. J
    
    This suit was brought by the executors of William Lyon deceased, who, from the year 1786 to the year 1809, held the offices of prothonotary, register, recorder, and clerk of the Orphans’ Court of the county of Cumberland against Thomas Adams, Isaiah Graham, and William Ely, who at the commencement of the suit were commissioners of that county, to recover clivers sums of money, alleged to be due from the county to their testator.
    
      prothonotaríes, registers, recorders, and clerks of the Orphans’ entitled to he respe^ive^ eounties for to public™ offices, nor for fuel since their erection.
    Prothonotaries are entitled to be paid by the county the expense of giving notice by public advertisement when the acts and journals of the assembly come into their hands, and also the price of the hook in which receipts are directed to be taken from each person to whom they deliver a copy of the acts or journals; but they are entitled to no other allowances in relation to this business.
    Prothonotaries are entitled to no fees for receiving and filing the returns of district and general elections, and transmitting copies of the said returns to the secretary of the Commonwealth; nor for performing the same services in relation to the election of President and Vice President of the United States; nor for Tiling the. oaths of the persons elected county commissioners, and making out and delivering to the persons so elected, certificates agreeably to law; nor for entering the appointment of auditors for settling the public accounts of the county; .hut they are entitled to fees for f. mg the reports of the auditors.
    Prothonotaries are not untitled to any fees for entering the appointments of s,gents of the general election, for the different election districts; but they are entitled to fees for giving notices under seal to the agents appointed.
    Prothonotaries can not recover of the county, fees in suits brought on forfeited recognisances, at the time when the money recovered in such suits was to bt paid into the treasury of the Commonwealth.
    The law will not imply a promise to pay debts due from a county, by individuals, who, when the suit was brought, were county commissioners, but who were not so when the debts originated, and who had ceased to be so before the suit was tried.
    
      Query, Whether county commissioners constitute a corporation liable to he' sued ? Tf they do, the suit should be against the corporation, without naming the commissioners individually.
    It seems, however, that tbe only remedy for the recovery of debts from a county, (in such case) is, by applying for a mandamus commanding the commissioners to draw an order on the county treasurer.
    
      On the trial, six bills of exceptions were taken to the admission and rejection of testimony, from which the nature of the claims on which the suit was founded, will sufficiently appear. They were as follows :
    
      First bill of exceptions.. The plaintiffs’ counsel offered to . prove, that their testator in the year 1/86, held the several offices of prothonotary, register, recorder, and clerk of the Orphans’ Court of Cumberland county; that in the same year he erected at his own expense, a building, separate and distinct from his dwelling house, which was exclusively occupied in keeping the records and transacting the business appertaining to said offices from the month of December, 1/90, until the month of December, 1803 ; that during that time he provided at his own expense, all fuel necessary for the said offices; and that since December, 1803, he had furnished all the fuel necessary for the public office, to-which the records of his several offices were then removed.
    The counsel for the defendants objected to the admission of the evidence offered, and the Court sustained the objection as to all evidence of the plaintiffs’ testator having furnished an office or fuel previous to the month of, December, 1803 ; but admitted evidence of fuel having been furnished for the public office from December, 1803, until January, 1809. The counsel for the plaintiffs excepted to the opinion of the Court, as to the testimony rejected, and the counsel for the defendants excepted to their opinion, as to the testimony admitted. It was admitted, that the public offices were not erected until the month of December, 1803.
    - Second bill of exceptions. The plaintiffs then offered to give in evidence, that their testator as prothonotary, had received the laws of Pennsylvania and of the United States; and had provided a book for taking receipts for the same, agreeably to law, from the year 1/91, until the year 1808, inclusive.
    The counsel for the defendants objected to evidence being, given of these facts, and the Court sustained the objection, except as to the costs of advertising, and the price of the book for entering receipts, agreeably to the acts of assembly. Their opinion was excepted to by the plaintiffs’ counsel, as to the testimony rejected, and by the defendants’ counsel as to the testimony admitted.
    
      Third bill of exceptions. The plaintiffs then offered to prove, that their testator, as prothonotary,' had received and filed the returns of district and general elections, and had transmitted copies of the said returns to the Secretary of the Supreme Executive Council, and to the Secretary of this Commonwealth, agreeably to the acts of assembly, from 1785 until 1808, inclusive.
    To the admission of evidence of these facts, the counsel for the defendants objected. The Court over-ruled the evidence, and the plaintiffs counsel excepted to their opinion.
    
      Fourth bill of exceptions. The counsel for the plaintiffs then offered to prove, that their testator, as prothonotary, had received and filed the returns of the district and general elections of electors of President and Vice President of the United States, in the years 1792,1796, 1800,1804, and 1808, and had transmitted copies of said returns to the Secretary of Pennsylvania agreeably to law. And that he had filed the oath of each commissioner of Cumberland county elected from 1799, until 1808, inclusive, and made out and delivered to the persons so elected, certificates agreeably to law. And that he had entered the appointments of auditors, to settle the public'accounts of Cumberland county, from 1791, until 1808, inclusive; and filed the reports of said auditors, from 1794, until 1808, inclusive. To all this testimony, the counsel for the defendants objected; and the Court refused to admit the evidence, except so far .as it related to the filing of the reports of the auditors. The counsel for the plaintiffs, excepted to' the opinion of the Court as it respected the testimony rejected, and the defendant’s counsel excepted to it, as it respected the evidence admitted.
    
      Fifth bill of exceptions. The counsel for the plaintiffs, then offered evidence to prove that their testator as Prothonotary, had entered the appointments of agents of the general election for the different election districts, in Cumberland county, and given notices under seal to the several agents appointed, from 1799, until 1802, inclusive. The Court overruled the evidence as to the entering the appointments of agents, and admitted it, as to the notices under seal. Their opinion was excepted to, by both the. plaintiffs’ and defendants’ counsel.
    
      
      Sixth bill of exceptions. The counsel for the plaintiffs then offered in evidence, the records of the Court of Common Pleas of Cumberland county, of all the suits mentioned in a certain statement. This statement contained a list of suits on forfeited recognisances, brought in the name of the Commonwealth, at a time when the sums recovered in such suits were paid into the treasury of the Commonwealth.
    The Court, on an objection being made by the defend-, ant’s counsel, over-ruled the evidence offered, and an exception was taken to their opinion by the plaintiffs.
    With a view to shew what had been the usage on the subject, the plaintiff’s counsel, by consent, read a number of certificates of persons who had held the several offices above mentioned in different counties, and of county commissioners in different counties, tending to prove, that it had been usual to allow the fees claimed by the plaintiffs.
    It was agreed, that on any judgment which might be entered in the suit, all questions which might arise should be taken up to the Supreme Court by writ of error, by either party, and if the Supreme Court should be of opinion, that the plaintiffs could recover in this action any of the items of their account, the amount of such items should be ascertained, and the judgment of the Supreme Court should be final, without any relation to the amount found by the verdict; and that the defendants would make no objection to the writ of error, on the ground of its being taken out by the plaintiffs to reverse their own judgment.
    
      Chambers and Watts, for the plaintiffs in error.
    
      Metzgar, for the defendants in error.
   The opinion of the Court was delivered by

Tilghman C. J.

Six exceptions were taken to the opinion of the Court below, which shall be considered in the order in which they stand in the record.

1. [Here the Chief Justice read the first bill of exceptions.] On the 27th March, 1790, an act was passed, to provide for the safety of the records of the several counties in the Commonwealth, by which the commissioners of each county were authorised, with the approbation of the Justices of the Court of Quarter Sessions, and the grand jury, to erect buildings for the safe-keeping of the records and papers belonging to the offices of the prothonotary of the County. Court of Common Pleas, the clerk of the Court of Quarter Ses.sions, the clerk of the Orphans’ Court, the recorder of deeds, and the register for the probate of wills, &c.; and all the said officers were directed, under the penalty of 200/. to deposit and keep all the records and papers belonging to their offices, in the said buildings, as soon as they should be erected, And by the same law all the before-mentioned officers, and also the sheriff of each county, were directed, under the penalty of 200/. from and after the 1st January, 1791, to keep their offices in the'town or place established by law for holding the Courts for each county. Before the making of this act, all the county officers had kept their offices in buildings provided by themselves, nor was there any law by which an allowance was made to them either for'office rent or for fuel. The act of 27th Match, 1790, was made, not for the benefit of the officers, but for the.public good; for the preservation of the records in which the county was interested. And inasmuch as no allowance is made by that, or any other act, either for office rent, until the public buildings should be erected, or for fuel at any time, it is the opinion of the Court, that the plaintiffs were not entitled to recover any thing, either for office rent or for fuel.

2. [Here he read the second bill of exceptions.] The opinion of the Court of Common Pleas was correct. The act of 6th April, 1802, directs the prothonotary to give notice, by public advertisement, when the acts of assembly and journals come to his hands, and provides, that the county shall pay the expense of such advertisement. The same act directs the prothonotary to take a receipt from each person to whom he shall deliver a copy of the acts or journals, in a book to be prepared at the expense of the county. No other allowance is made to the prothonotary on account of this business, and therefore he is entitled to nothing more.

3. [Here his honour read the third bill of exceptions.] The Court of Common Pleas were right in their opinion. There is no law by which the claim of the plaintiffs can be supported.

4. [Here he read the fourth bill-of exceptions:] In this opinion also, we agree with the Court of Common Pleas. He that accepts a public office, takes it cum onere. For certain services fees are prescribed by law ; for certain other services i.t was not intended that fees should be paid. It is not true, that for every service, officers are entitled to a quantum meruit, although no fee is allowed by act of assembly; but it is true, that in some cases, sanctioned by long custom, a quantum meruit was allowed, until forbidden by the present fee bill. These principles were laid down by this Court, in the cases of Sheriff Irwin v. The Commissioners of Northumberland county, 1 Serg. & Rawle, 505, and Levy,prothonotary of Northumberland county v. The same Commissioners, ante. 291.

5. [Here he read the fifth bill of exceptions.] In this opinion, we perceive no error.

6. [Here he read the sixth bill of exceptions.] At the time when the suits were brought, in which these fees are charged, the sums recovered on forfeited recognisances, went into the treasury of the Commonwealth, and the actions were brought in the name of the Commonwealth. We can perceive no reason whatever, therefore, why the county should be charged. The opinion of the Court of Common Pleas was right.

But an objection is ma'de, which strikes at the root of the plaintiffs’ action. It'is not pretended, that the defendants made a positive assumption to pay any of those fees. Will the law then imply a promise ? The commissioners have no public funds in their hands. The money of the county is kept by the county treasurer, and the commissioners pay the county debts by orders drawn on him. But the defendants have no power to draw orders, because they have ceased to be commissioners. Nor does it appear, that they were commissioners at the time the services were performed for which the fees, claimed in this suit, are charged. It is impossible then, that the law can imply an assumption to charge them in their private capacities ; and yet as such, and in no other way will they be charged, if judgment goes against them in this suit. Their being named commissioners in the writ, is of no importance. They are not sued by any corporate name. If indeed the commissioners constitute a corporation liable to be sued, the suit should be against the commissioners, without naming them individually, and then the judgment would be entered in like manner. But we give no opinion, whether such a suit be maintainable. It would be attended with difficulties. The commissioners not being intrusted .with the funds of the county, on what could an execution be levied ? Or what would be the benefit of a judgment against a corporation which has no property ? The usual course has been, to apply to this Court for a mandamus, commanding the commissioners to draw an order on the treasurer. That certainly appears to be the plainest Course; but without deciding, whether there be any other remedy, we only give our opinion at present, that this action cannot be supported.

Duncan J.

having been concerned as counsel for the defendants in error, took no part in the decision.  