1804. the city of Philadelphia, the district of Southwark, or the town~ "ship of the Northern Liberties, or Moyamensing, according to "law: Now the condition of this obligation is such, that if the " said John Chaloner shall well and faithfully execute the afore"said office of auctioneer according to law; and shall from time "to time well and truly account for all public monies, which "shall come into his hands, and pay the same into the treasury "of the state, agreeably to the directions of the several acts of "assembly of this commonwealth, which relate to auctions and "auctioneers; then the above obligation to be void, and of none “effect, or to be and remain in full force and virtue."

In Footman's case: "Whereas by a commission bearing even "date with the above written obligation, the above bounden R. "S. Footman has been duly appointed one of the public auctioneers in and for the city of Philadelphia: Now the condition of "this obligation is such, that if the above bounden R. S. Foot“man shall well and faithfully discharge and perform all the du"ties of an auctioneer, and in all things truly and fully comply "with, and execute the laws relating to the office of auctioneer, "then the above written obligation to be void, otherwise to be " and remain in full force and virtue."

While these bonds, respectively, were in force, Mr. James Yard delivered to Chaloner, as public auctioneer, a considerable quantity of goods to be sold for him. The goods were, accordingly, sold; but Chaloner retained 5,011 dollars of the proceeds, which he never paid over, or accounted for, to Mr. Yard. And, at the same time, he was considerably indebted to the state, for duties received upon sales at auction. Mrs. Gapper, in like manner, delivered to Footman, as a public auctioneer, a quantity of goods to be sold for her; which were, accordingly, sold; but the proceeds never accounted for; although Footman had punctually paid into the state treasury, all the duties, which he had collected.

Chaloner being dead, an action was brought upon his bond, against his executors. &c. for the use of the commonwealth, in which judgment was rendered, and the amount of the duties (being less than the penalty) was recovered. (1) Mr. Yard, thereupon, issued a scire facias, returnable to December term 1798, against the executors of Thomas Lea, one of Chaloner's sureties; while Mrs. Gapper instituted a suit upon Footman's bond, in the name of the secretary of the commonwealth, for her use. Cases, comprising the foregoing facts (redenda singula singulis) were filed in the actions respectively, with an agreement to consider them as special verdicts, for the purpose of a writ of error; and the general question submitted to the Court, was, Whether an auctioneer's bond is a security for his private customers, as well as for the payment of the duties to the state?

After argument, the opinion of the Supreme Court, was deli- 1804. vered, seriatim, on the 24th of March 1802, by SMITH and BRACKENRIDGE, Justices, (Chief Justice SHIPPEN, and YEATES, Justice, declining to take a part in the decision, on account of their relationship to the defendants) conformably to which, judgment was entered for the plaintiff, in both suits: (1) And writs of error were brought upon these judgments.

The

(1) I have been favoured with a note of what was said by the Judges; from which, in substance, may be collected the following principles.

SMITH, Justice This is strongly pressed as a case of sureties, against whom an obligation ought never, it is said, to be extended, beyond the strict letter. 2 T. Rep. 370. But, the truth is, that where there is a joint obligation, the law does not, abstractedly, recognise the character of a surety: and, after all, sureties must be bound, according to the true construction of the obligation, whatever may be the form of the expression. 1 Br. Ch. 87.

The essential question, therefore, is, to what duties, does the condition of the bond refer? It is a general rule, resulting from a view of our whole official system, that where an officer gives a bond for the performance of his duties, it shall operate to protect the individuals, who are obliged by the law, to resort to his office, as well as the public, by whom he is appointed. From many instances, it is sufficient to mention those of sheriffs, coroners, and surveyors. The instance of an auctioneer, independent of the positive provisions of the statute, seems, at least, to be, as much as any other, within the reason, principle, and policy, of the rule. He is a public agent, with an exclusive authority to sell at vendue. Individuals cannot employ any other agent for the purpose of selling their goods; and it is the uniform practice to leave to him, too, the collection of the purchase money. Indeed, I cannot perceive how the owner of the goods could consistently with the various provisions of the laws, maintain an action against the vendee, for the price, in his own name. I grant, that the general rule is, that he who sells by another, is in contemplation of law, the seller himself, with the right of action to recover the price: but that rule applies only, where the owner of the goods may chuse his agent, and not where he is obliged to employ the agent of the public. 2 Stra. 1182. Inconveniences might easily be suggested, arising from the opposite doctrine. Auctioneers often advance money on goods sent for sale: would it be just that the owner should still have the power to demand and recover the price, from the purchaser? On a sale, the state acquires a right to the duty, as well as the owner to the purchase money: shall the owner be allowed to recover the duty, as well as the price; or must the vendee be exposed to two demands, and two suits? If, then, upon motives of public policy, a public agent is imposed on the citizens for the sale of their goods, nothing but express words would warrant our supposing, that the legislature, while they took a bond to protect the collection of a small revenue, meant to leave unprotected, so great an amount of private property.

The very smallness of the penalty of the bond, has, however, been urged as an argument, to show, that it could not be the intention of the legislature, to embrace the interests of individuals, as well as the rights of the state. To this objection, I answer: 1st. That, in proportion to the responsibility, the penalty is larger, than in the case of sheriffs' bonds. 2d. That there are several auctioneers, each giving a bond in the same sum; and the vendor may consider which of them, and his sureties, may be most safely entrusted. 3d. That by the condition of the auctioneer's bond, the sums collected, are to be immediately paid over; whereas, in the case of a sheriff, the monies levied may be retained for a considerable time.

Upon the whole, I think judgment must be rendered for the plaintiff. BRACKENRIDGE, Justice. The act of the 23d of September 1780, is the first that reserves a per centum for the state, on sales at auction: but it will not be said, that adding to the duties of the auctioneer, diminished the effect of the VOL. IV. ubligation.

1804.

The case was argued on the 16th, 17th, 18th, and 19th of January 1804, by M. Levy, E. Tilghman, and Ingersoll, for the plaintiffs in error, and by Lewis, Rarole, S. Levy, and Dallas, for the defendants in error. And, in the course of the argument, both sides referred to the following sections, of the several acts of the general assembly, relative to auctions.

46

1st. An act was passed on the 14th of February 1729, (1 State Laws, 154. Gall. edit.) " for regulating pedlars, vendues, &c." The preamble recites," Whereas of late many idle and vagrant "persons are come into this province, and, under pretence of being hawkers or pedlars, and carrying goods from house to "house within this province to sell, have greatly imposed upon many people, as well in the quality as in the price of the goods, "and under colour of selling their wares and merchandizes, "have entered into the houses of many honest and sober people, "in the absence of the owner, or owners, of the said houses, "and committed felonies and other misdemeanors, to the great

46

66

prejudice of the inhabitants of this province. For remedying "of which inconveniences, and preventing such evil practices, "and to the intent that no persons may be admitted to follow "the business of hawkers and pedlars within this province, but persons of known honesty, and civil behaviour," &c. The sixth section of the act provided, "That no person, or persons "whatsoever, except as hereinafter is excepted, shall, after, the "publication of this act, take upon him, her, or themselves, to "sell, or expose to sale, by way of vendue, or auction, any wares, goods, or merchandizes, within the city of Philadelphia, unless "such person, or persons, shall be recommended by the mayor, "recorder, and aldermen .of the said city of Philadelphia, in "their open sessions, to the governor of this province; and shall "have given security to the mayor of the said city, for the time "being, for the use of the corporation, in such sum as shall be "agreed upon by the said mayor, &c. provided the same do “ not exceed the sum 500l., for his or their honest and due

obligation. Every duty, which an auctioneer is bound to perform, is embraced in the terms of the condition; and paying over the proceeds of the sales to his employers, is expressly a duty.

The reduction of the penalty of the bond from 20,000l. to 2,000%, might raise a presumption, that when a revenue was contemplated, the revenue only was to be protected; were not that circumstance rebutted, by considering the relative value of money, at the two periods of passing the laws.

Then, the auctioneer is a pubic agent, who must be employed to sell goods at public vendue. He is not only the exclusive agent to sell; but the law, obviously, makes him the exclusive agent to collect the amount of the sales: the owner of the goods cannot forbid the payment to the auctioneer, and recover the purchase money himself. In such a state of things, it is reasonable and just, that the law should protect the private citizens, who are compelled to trust a public agent, in this, as well as in any other, instance; and although the penalty is small, it is in my view a positive provision to protect the customers of the auctioneer, as well as the revenue of the public. Judgment must be for the plaintiff. "execution

"execution of the office of vendue-master within the city of Phila. 1804. "delphia, and for the due observation of the ordinances of the said "city, touching the regulating vendues, or public sales, or auctions, "within the same. ""

2d. An act was passed on the 26th of November 1779 (2 State Laws, 245. M Kean's edit.)." for the effectual suppression of "public auctions and vendues, &c." to expire at the termination of the war. It provides for the appointment of a single "auctioneer of the city of Philadelphia;" and the 9th section declares," that the said auctioneer shall, before he enters "upon the duties of his office, become bound with two sufficient "sureties, unto the president of the supreme executive council "of this state, in the sum of 20,000l., conditioned for the faith"ful performance of the duties required of him, and for the honest "and just satisfaction and payment of his employers, and every one of them. And besides the usual attestation required of the "officers of this state by law, shall take an oath that he will, to "the best of his skill and abilities, faithfully perform and execute "the duties required of him by this act."

66

3d. An act was passed on the 23d of September 1780 (2 State Laws, 406. M Kean's edit.) " to alter and amend," the preceeding act; by the 2d section of which, the appointment of three auctioneers is authorised, "who shall continue for and during "the will and pleasure of president, &c. and shall give bond to "the president and his successors, with two sufficient sureties, "in the sum of 20,000l. 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:" by the 3d section it is provided, that the said auctioneers shall have an exclusive right to sell by public vendue," rendering and paying to the state treasurer, for the use of the commonwealth, one per centum of the gross amount of the sales, so by him, or them, made as afore"said, in manner following, that is to say; that each and every "of the said auctioneers, shall once in every three months render 66 an account upon oath to the said treasurer, &c. of all the effects "and property by him sold at any time before the said time of "rendering the same account, and since his last settlement, and "shall then immediately pay to the same treasurer the full amount "of the said one pound in the hundred pounds upon the same "account. And upon any failure in rendering the same account upon oath, or of payment of the said sum of one per centum, any auctioneer so failing, or neglecting, shall be discharged "from his place, and the said bond put immediately in suit:" And by the 8th section, it is provided, that the fees or recompense of the auctioneers, "for selling at public auction, collecting "the money, and paying over the same without loss or waste, shall "be, &c."-a per centage, more or less, according to the nature of the specified articles.

4th. An

1804.

66

4th. An act was passed on the 13th of April 1782 (2 vol. State Laws, Dall. edit.) by which the compensation of the auctioneers was reduced, “for their expences and trouble in selling any property at public auction, collecting the money and paying over "the same without loss;" an additional one per centum was charged on the gross sales, for the use of the commonwealth, to be accounted for and paid over, as the preceding law directs, under the penalty therein mentioned; and it was declared, "that the several "bonds given by the said auctioneers to the president, for the "faithful performance of the duties of them required by the afore"said act, shall be a security for the payment of the one per centum "imposed by this act."

5th. An act was passed on the 9th of December 1783 (2 State. Lars, 169. Dall. edit.) by which the previous acts (with certain exceptions) were made perpetual; auctioneers were prohibited from buying, at public sales, on their own account; and, it was repeated, that if an auctioneer failed or neglected to account, he should be discharged from his place, and his bond put in suit.

6th. An act was passed n the 19th of March 1789 (2 vol. State Laws, 680. Dall. eait.) by which the appointment of an auctioneer for Moyamensing was authorised, who should give bond, with two sufficient sureties, in the sum of 2000l., “for the "faithful discharge of his duty, and for well and truly perform"ing 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."

7th. An act was passed on the 27th of March 1790 (2 vol. State Laws, 777. Dall. edit.) reducing the duty on sales to one per cent., and authorising the appointment of two additional auctioneers, who shall give bond "with two or more sufficient sure"ties, in the sum of 2000l., 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.”

8th. An act was passed on the 26th of February 1791, (3 State Laws, 91. Dall. edit.) by which the restriction upon the auctioncers to sell goods only within the districts, for which they were respectively appointed, was repealed and annulled.(1)

For the plaintiff in error. 1st. It is proper to premise, that the present suits are instituted against sureties, after the principals are insolvent and dead. And, independent of any peculiar hard

(1) It may be proper, after this recapitulation, to observe, that the conditions of the bonds, in the present cases, were not drawn strictly in the terms of the acts of assembly; but it was agreed, to argue and decide the general question, independent of any objection, that might be made to the form of the bonds.