#### *Coplin and Others v. M’Calley. Same v. Sehon.

May, 1829.

[19 Am. Dec. 748.]

(Absent Carr, J.*)

Court of Chancery —ilarshal—Failure to Reappoint after Three Years — Liability of Sureties. — A marshal of the court of chancery (an officer appointed by and holding during the pleasure .of the court, required to give bond with surety for due discharge of his office, which the court is required to have renewed from time to time atintervals pot exceeding three years) on being appointed gives bond with sureties; but no new bond is required within three years; ?.nd he continues in office. Help, the sureties are answerable for his misconduct after the expiration of three years.

When Officers Must Account for Clerk’s Tickets —If a clerk’s tickets be delivered after 1st June in any year, to sheriff or marshal for collection, he is not bound to account for them on 1st November following, nor before 1st November in the next year.

Isaac Heiskell was appointed by the chancellor marshal of the court of chancery of Clarksburg, May 22, 1817; and with the appellants, Coplin and others, his sureties, executed an official bond, on the same day, conditioned according to law, for the payment of all moneys which he might receive by virtue of his office, and for the faithful discharge of all the other duties thereof. The court did not cause this bond to be renewed, at any time within three 3Tears from its date, or after the expiration of three years, as the statute directs. See 1 Rev. Code, ch. 66, fj 62, 3, p. 209, 10.

Heiskell, in his official xharacter, under a decree of the court of chancery, collected 254 dollars due to M’Calley, October 18, 1822. He failed to pay the money to M’Calley: who thereupon made a motion against him and Coplin and others, his sureties, in the court of chancery, for a judgment for the money, so collected and withheld, and damages at the rate of 15 per cent, per ann. thereon. The chancellor gave judgment for the principal sum of 254 dollars, with damages at the rate of 6 per cent, per ann. and costs. The sureties, Coplin and others, appealed to this court.

*On the 5th June 1821, Sehon, the clerk of the court of chancery, put into Heiskell’s hands sundry accounts or tickets (as they are commonly called) for fees accruing for his official services, to be collected by him as marshal. See 1 Rev. Code, ch. 85, *l*21, 24, 29, p. 319, 321. Heiskell failing to account for and pay the^ amount of fees collected by him, Sehon made a motion in the circuit court of Harrison, against him and his sureties, for judgment for the balance of the fees unaccounted for, with damages according to law. And the circuit court gave him judgment for 446 dollars (the balance of the fees collected and unaccounted for by the marshal) with damages *103thereon, to be computed from the 1st November 1821, at the rate of 6 per cent, per ann. and costs. And the sureties appealed to this court.

The causes were (of course) heard together here.

Leigh for the appellants.

I. The official bond of the marshal did not bind the sureties for any act or omission of the marshal, after the expiration of three years from its date. Though the statute provides, that the marshal shall hold his office during the pleasure of the court, and shall give bond with sufficient sureties, conditioned for the payment of all moneys he shall receive by virtue of his office; yet it also imperatively directs, that ! ‘the court shall cause the official bond to be renewed from time to time, as occasion shall require, not exceeding in any case three years and provides, that such new bond “shall supersede the former so far only, as that the sureties in the former, shall be in no manner liable under it, for any act done, or for any omission, after the date of the latter.” Now, the sureties of the marshal contracting the obligation under and in pursuance of the provisions of this statute, those provisions enter into, explain, and limit the extent of, their obligation. They contract the obligation, in the faith that the court will perform the duty imposed on it by the statute, and require a new bond of the officer, at the expiration of three years at most: they bind *lhemselves, then, for the good conduct of the officer during that time at most. If the bond had been renewed as required, and at the time required by law, the appellants would not have been responsible for the neglect of the marshal to account for and pay the *moneys*he collected for the appellees: the new bond would have been the security for his good conduct in regard to those collections. It was the duty of the court to have the bond renewed, at the expiration of three years, not the duty of the sureties to see that it was done: it was owing to the omission of the court, that a new bond was not taken: and to hold the sureties of the marshal liable for these moneys, is, in effect, to make them responsible for the inadvertence of the court, as much as for the fault of the officer. The case is analogous, in principle, to that class of cases, in which it has been held that a bond for an officer’s faithful performance of an office of limited duration, during his continuance in office generally, though the officer be in fact continued in the office after the term, is binding on the sureties, only for his conduct during the existing term of office. Arlington v. Merricke, 2 Wms. Saund. 412-414, note 5; Commonwealth v. Fairfax, 4 Hen. & Munf. 208. There can be no just distinction, as to the obligation of the sureties, between the case where the office is limited by law to a certain term, and the case where the official bond is limited to a certain term, as is the case here.

II. As to Sehon’s case: 1st, He had no right to the summary remedy by motion, in this case, for his fees collected by the marshal. All those summary statutory remedies, trenching upon the common law, are to be confined strictly to the cases in which the statute expressly gives them. The statute provides (1 Rev. Code, ch. 85, $ 21, p. 319), that the clerks shall deliver their accounts of fees to the collecting officers, annually, before the 1st June, and (Id. 1 24), that the officers shall account for and pay them on or before the 1st November; and gives the motion for fees so delivered, and not so accounted for. Here the fees were delivered *to the officer on the 5th June 1821.

2ndly, At all events, the officer was not bound to account for these fees on the 1st November 1821. At best, they could only be considered as fees delivered for collection before the 1st June 1822, and the officer accountable for them on the 1st November 1822, Therefore, damages (if allowable at all) should not have been computed from November 1821, but only from November 1822. But, 3rdly, Neither damages nor interest should have been given against the sureties. The statute ($ 24), allows damages, not exceeding 15 per cent, per ann. against the principal; but against the sureties (i 2b), it gives a motion for the amount of the fees only.

Johnson, for the appellees.

I. The tenure of the marshal’s office was during the pleasure of the court. The sureties in his official bond were bound for his good conduct in that office; that is, during his continuance in it. He continued in the office, whether he renewed his official bond or not; the statute not requiring that he should be appointed anew at the expiration of three years, but only directing that his bond should be renewed. The case, then, is not at all analogous to Arlington v. Merricke, and Commonwealth v. Fairfax. The statute, in providing that the chancellor shall cause the bond to be renewed, from time to time as occasion may require, not exceeding in any case three years, is directory to the court; and the purpose of the direction was to take care of the interest of the suitors in the court, not of the sureties of the officer. The statute also plainly intends to hold the sureties in each bond, liable for all acts of the officer, done before the execution of a new bond, whenever it may become executed : for it provides, that the new bond shall supersede the former, so far only, as that the sureties in the former, shall not be liable for acts or omissions after the dale of the latter. And any of the sureties had a right at any time, to represent the case to the court, and ask that it should demand another bond.

*11. With regard to the clerk’s case, the most that can be contended for, is, that his accounts of fees, not having been delivered before the 1st June 1821, are to be considered as fees delivered before the 1st June 1822, so as to make the officer accountable for them on the 1st November 1822.

*

He did not sit, because be decided one of tbe causes in the court of chancery.

PER CURIAM.

The doctrine of Arlington v. Merricke, and that class of cases, is, that where an official bond is given for the faithful discharge of the duties of an office, by the officer during his continuance in office, and the office is of a certain limited term of duration, though the officer be in fact re-appointed to or continued in the office for another term or longer, the obli*104gation of the bond is only co-extensive with the existing term of office. But the tenure of the marshal’s office was during the pleasure of the court: his official bond bound his sureties for his conduct in office: and the obligation of this bond was co-extensive with the duration of this office. The failure of the court to require a new bond, did not determine his office. The statute directs the new bond for the better security of persons interested in the officer’s official conduct. It provides, in express words, that the new bond shall supersede the former, so far only as to exempt the sureties in the former, from liability for official acts and omissions after the date of the latter. The marshal’s sureties in the first bond, became thereby bound for his official conduct, until his office should be determined by removal or otherwise, or until he should give a new bond.

There is, indeed, an error in M’Calley’s case, but it is an error against him. The statute entitled him to damages at the rate of fifteen per cent, per ann. on the amount collected by the marshal for him, and not paid over. 1 Rev. Code, ch. 134, § 48, p. 542, 3. The judgment gives him damages only at the rate of six per cent. Of this he has not complained, and the appellants cannot. This judgment is to be affirmed.

*There is error in Sehon’s case, prejudicial to the appellants. The appellee’s clerk’s tickets were delivered to the marshal for collection, after the 1st June 1821,. and the officer was not bound to account for them on the 1st November following. Upon a just construction of the fee law, those tickets are to be considered as delivered before the 1st June 1822, and the officer accountable for them on the 1st November 1822. The judgment awards damages to be computed from the 1st November 1821. It ought to have allowed them only from November 1822. This judgment is to . be reversed for this cause, and corrected in this respect.