ship in this case, it is a rule of law, as well as of equity; that the 1804. responsibility of a surety, shall never be extended beyond the strict letter of his contract. 2 T. Rep. 370. 2 Wils. 379. 4 Vez. jr. 788. Nor is the contract to be regarded in the same rigor, as if it had been expressed by the parties themselves, in their own terms; instead of being prescribed by a legislative act. In such a case, the meaning of the terms employed by the legislature, should be unequivocal, plain, and clear, before it is adopted, as the meaning of the surety, to bind him in a manner so injurious and oppressive. 2d. The acts of the assembly of the year 1780, 1782, 1783, 1789, and 1790, were in force, when these auctioneers were appointed; they direct that bonds shall be given, and they prescribe the terms of the condition of the bonds; but they do not expressly, in any instance, declare the bonds to be a security for private customers. From the year 1729, until the 26th of November 1779, although several acts were in force to regulate sales at public vendue, there is, likewise, no express provision to be found, declaring the bond of an auctioneer to be for the use of the individuals, who employed him. Then, the only act, in the whole of the system, with all its successive modifications, by which the bond is expressly appropriated to the protection of an injured customer, is the act of the 26th of November 1779. 3d. The act of the 26th of November 1779, by adding to a provision, "for the faithful performance of the duties required of "the auctioneer," a provision "for the honest and just satisfac"tion and payment of his employers, and every one of them;" shows it to be the sense of the legislature, that the expressions of the former, would not embrace the objects of the latter pravision. 4th. The duration of the act of the 26th of November 1779, was limited, by its own terms, to the continuance of the war, and the limitation, of course affected the supplemental acts of 1780, and 1782; but the act of the 9th of December 1783, rendered the supplements perpetual, and so much of the act of 1779, as was not thereby altered, or supplied. Then, it is to be considered, that the act of 1780, made expressly "to alter and "amend" the act of 1779, not only increases the number of auctioneers, but prescribes a new condition to be annexed to their bonds; to wit; "for the faithful discharge of their duties, and "for well and truly performing the terms and payments in, and "by this act directed and required," totally omitting the passage in the condition before prescribed, "for the honest and just satis"faction and payment of the employers," of the auctioneer. 5th. The terms of the condition prescribed in the act of 1780, supplied and superseded the terms of the condition in the act of 1779; they do not mean the same thing, and particularly, they do not both embrace the rights of the individual employers, as well as the rights of the public. Thus, the duties referred to by the act of 1780, are the duty of keeping a regular register of horses,

and

1804. and of accounting to the state; and of acting fairly between buyer and seller; while "the terms and payments" required to be per formed, are those which are, specifically, directed and required "in and by this act;" and the act no where directs or requires a payment to the employers but only to the public. It is true, that the act of 1780, as well as the act of 1779, declares, that, "for "selling at public auction, collecting the money, and paying "over the same without loss or waste," the auctioneer shall be allowed a per centage; but there is in this provision no duty prescribed, no terms and payments stipulated; nothing that relates to a surety, or can affect him: it is merely an enumeration of the services to be performed, by the agent, in consideration of the compensation which the law allows him to demand and receive. 6th. The legislative intention to limit the operation of the bond to a governmental security, may be fairly inferred from a variety of considerations: the smallness of the penalty; the change of expression, to exclude as it were, the opposite construction, when a public duty was first imposed by the act of 1780, the increase of the number of auctioneers, which gave individuals a selection, and so far rendered a provision in their favour unnecessary; the express provision uniformly made for individuals by the legislature in every other case of an official bond; and, finally, the general understanding of the bar, expressed in various opinions given upon the case of Major Boyd. 3 State Laws. 131. Dall. edit. 7th. It is not a sufficient answer to these arguments, that auctioneers are public agents, possessing a monopoly of the sales at public vendue, to whom private citizens are obliged to resort; and, therefore, ought to be protected. In the first place, the regulations of the acts, though they compel individuals to employ the public auctioneer, do not prevent a special contract between them, as to the collection of monies, nor even as to the rate of compensation. Besides, it is not true, that the ac expressly empower the auctioneers alone to collect the proceeds of sales; and the general rule of law is well established, that where the dissenting principal declares himself, a vendee cannot be discharged by a payment to the agent. 2 Vez. 221. Even in the case of a compulsive agency, if the employer pays the duty and commissions to the auctioneer, he may sue the vendee for the purchase money. 7 T. Rep. 359. And in some cases, a conrary doctrine would be iniquitous: for, suppose the auctioneer becomes bankrupt, before the money is collected; may his assignees collect the money, and put the employer to a dividend? Or, suppose the sales are made for approved notes, at distant pe

riods, shall it be deemed right and lawful, that the auctioneer shall take the notes, and hold them, or use them, at the risque of the employer, till the credit is expired; and, possibly, till the money is recovered upon them in an action at law!

For

For the defendants in error. 1st. The general question is, whe- 1804. ther the official bond of an auctioneer, is a security for his fidelity towards individuals, as well as towards the public? On this question, whatever is the meaning of the legislature in the acts of assembly, is the meaning of the parties in the bond. Both princi pal and surety are bound, according to that meaning; and beyond it neither of them is bound. The only distinction here between the principal and surety is, that the principal may be liable either at common law, or on the bond; but the surety can only be liable on the bond. 2 T. Rep. 105. 1 H. Black. 186. On the true construction of the bond, however, the surety, as well as the principal, would be liable, even beyond the direct letter (though the present case requires it not). 4 B. P. C. 87. And the obiter dicta of Buller in 2 T. Rep. 370. must be explained by the subject matter; while the authority of 2 Wils. 379. yields to the contrary decision in 1 T. Rep. 291. 2d. Under every modification of the office, duties, and bonds, of auctioneers, the legislature meant to protect the customers that employed them, as well as the government that appointed them. On principle, it must be meant, since the legislature takes from private individuals the right of chusing their own agents; and, from analogy to other public officers, it must be meant; for, there is not a single instance in the whole of our code, where an official bond is not, either by express words, or the established, practical, construction, held to afford remedy and relief to injured private persons; as in the cases of sheriffs, coroners, administrators, &c. Cowp. 140. (against Ambl. 183.) 3 Atk. 248. 2 Inst. 650. Vaugh. 334. 12 Co. 30. b. But the same meaning is clearly, and necessarily derived, from the words of the legislature, in the acts under immediate discussion. Thus, the act of 1729, was passed, because strect vendues, &c. had become a nuisance; no revenue, or other pub. lic object, than to ensure fair dealing, was contemplated; and the condition of the bond was simply "for the honest and due exe"cution of the office." No other honesty, or duty, could be in view here, than honesty and duty towards the customers of the auctioneer. True, the bond was given for the use of the corporation, and the customers had no personal remedy upon it; but still it operated as a penalty for their protection; and if the auctioneer was dishonest, or failed, in any way, tɔ do his duty, the forfeiture was absolute under the act of 1729; while it is now contended, that under the act of 1780, so far as security is concerned, if he is honest to the public, there can be no forfeiture of the official bond, let him be ever so fraudulent towards the private citizen. The act of 1779 confirms expressly the legislative meaning to be in favour of giving a security to the employers of auctioneers, both in the terms of the condition of the bond, and the oath of the auctioneer; and although the phraseology is changed, the substance of the provisions remain the same;

66

an

honest

1804. honest and due execution of the office," under the act of 1729,

certainly including "an honest and just satisfaction and payment of the employers," as well as a performance of the general duties of the office. But in the act of 1779 "the use for the corporation," is discontinued; no other use of the official bond is de clared; the penalty, reduced by the scale of depreciation, is nearly the same as before; certain duties are prescribed in the 9th and 10th sections (such as a search for offenders, and collecting and paying over the proceeds of sales) but even under this act no duty is contemplated to be raised, on sales at auction. Then, the essential inquiry rests on the act of 1780, which, as well as all the subsequent acts, passed, not to repeal, but to alter, amend, supply, or enlarge, the provisions of the act of 1779; and being, in pari materia, must be considered together, in order to ascertain the true meaning of the system. The act of 1780, is the first that contemplates a revenue from sales at auction; but, independent of the provisions to secure the revenue, it continues, in substance, the provisions to protect the employers; particularly making it a duty, on which the right of compensation arises, to collect the proceeds of sales, " and pay over the same, without loss, or waste." But it is urged, that the act of 1780, when it prescribes the condition of the bond, omits entirely the previous stipulation," for the honest and just satisfaction and payment of employers;" and claims from auctioneers only "the faithful discharge of their duties, and well and truly performing the "terms and payments, in and by this act directed and required." The omission suggested, was correct; for, in the previous act, the stipulation was tautologous and surplusage; as the duties of the auctioneer (which he was bound to perform) were emphatically to collect the money and make payment to his employers, no revenue being at that time in contemplation. The appointment of the auctioneer, fixes his duties, as does the appointment of a sheriff, &c. without specification, or detail. Selling, collecting, and paying, form the great outline of those duties. The first and second are common both to the state, and to individuals; and, as to the third, it branches into a payment of the tax to the state, and of the purchase money to the individuals. Besides, "the terms and payments directed and required in and by this act," are, also, to be performed; and the payment to the employer is required by the act, as well as the payment to the state. In short, the two members of the condition of the present bond, fortifying and sustaining each other, must embrace all the duties, all the obligations, which the laws impose upon an auctioneer, or the meaning will be constrained, and inconsistent with the general import of the words. 3d. But in opposition to the meaning of the legislature thus deduced, every kind of inference is offered, as well from the silence, as the expression, of the laws. It is. said, that neither principal or surety are liable to the employer,

for

for a performance of their duty to him; because the act of 1780, 1804. and the subsequent acts, do not say so expressly, as the act of 1779 did; and because the penalty of the bond is inadequate to afford an indemnity for the injury to which, we contend, it applies. If, therefore, the words omitted had been retained, the controversy must so far have ceased; and the only question is, whether words equipotent, or even more extensive for the object, are not employed. But as to the second difficulty, it sounds in this absurdity, that because the bond is not sufficient to protect the employer entirely, it shall not protect him at all. Is the sheriff's bond, is a surveyor's bond, is every administration bond, found commensurate with the possible delinquency, or defalcation? And is it conceivable, that because a surety is called on for less than the loss, that, therefore, he is to pay nothing? But, the truth is, that the sum is more adequate now, than under the act of 1779, when its application to the relief of the employer, is admitted. It is raised from the scaled value of 518. (on 20,000%. at 381 for one) to the specie value of 2000l. The increase of the number of auctioneers, virtually augments the fund for the indemnity of individuals; the restriction to sell in their respective districts (while in force) limited the quantum of custom of each auctioneer; and the obligation to account quarterly with the state, under the penalty of an immediate dismission from office, reduced the demand of the state for an indemnity to a mere possibility. Neither the first tax of one per cent., nor its subsequent accumulations, could, under such circumstances, require the protection of a penalty of 2000/. from six auctioneers. Park. 273. Something more must be protected than the revenue; the general provision of the act of 1713, (1 vol. State Larvs, 102. Gall. edit.) gives a ground of exposition from all official bonds; and when revenue only is meant to be protected; or the penalty is to operate as a punishment to the delinquent, not as a relief to the injured; in the English statutes, as well as in the Pennsylvania code, the language of the legislature is appropriate and unequivocal. 19 Geo. 3. c. 56. s. 7. 1 Anstr. 586. 4th. If arguments ab inconvenienti may avail, what can be more forcible, than the inconvenience which proceeds from the opposite construction, when the auctioneer is regarded as a public agent, invested with the exclusive right to collect the monies on sales at auction? The rule is different as

to a common law agency; where there are three voluntary parties, the owner, the agent, and the buyer; 2 Vez. 221. and the difference is not destroyed, though modified, in the case of an agent del credere. Bull. N. P. 130. 7 T. Rep. 359. Here, however, the licensed auctioneer is not only a legislative agent, del credere, to the buyer, but the state constitutes a fourth party, giving the law to every part of the transaction, to every degree of the responsibility. The auctioneer is, thus, a trustee for the VOL. IV.

state.