#### *Commonwealth v. Jackson’s Ex’or & al.

November, 1829.

Bond Taken by Court without Authority of Law — Effect as to Surety.* — Hustings court of Williamsburg, without any authority of law for the act, appoints a collector of the public taxes, for the city, and. takes his bond with surety for due collection &c. payable to the governor and his successors: Hbitd, such bond is not valid and obligatory on the surety.

The hustings court of the city of Williamsburg, iu August 1816, appointed Jackson to collect all public taxes imposed by law on the city; and took a bond from him with Browne as his surety, in the penalty of 30,000 dollars, payable to Wilson Cary Nicholas, then governor, and his successors, with condition that Jackson should well and truly collect, account for and pay the taxes &c. Jackson failed to pay the amount of taxes, by him collected, into the treasury, and the commonwealth recovered a judgment for the same against him in the general court, and sued out execution without effect.

Upon a bill exhibited in the superiour court of chancery of Richmond, by the attorney general and auditor, against Browne as the executor of Jackson and as his surety in the bond, and several others, the case turned eventually on the single' question, Whether the bond was valid and obligatory upon the surety?

The chancellor held that it was not, and dismissed the bill; and from that decree an appeal was taken for the commonwealth to this court.

The Attorney General, for the commonwealth, said, that the first question was, Whether the hustings court had authority to appoint a collector of public taxes for the city, and to take bond and surety for the due collection, accounting for and paying them into the treasury? And he referred to the acts of May 1778, ch. 17; 9 Hen. Stat. at Large, p. 468; May 1779, ch. 20; October 1781, ch. 40; 10 Id. pp. 85, 501, 6; May 1782, ch. 39, | 3, 11; 11 Id. pp. 66, 8, which statutes, he said, gave this power to the hustings *court; and these acts had never been repealed. But, supposing that the bond was not good as a statutory bond, another question would still remain, .whether.it was not a good and obligatory bond by the common law, as well to the surety as the principal? The surety ought not to be allowed to deny the obligation of the bond,, since, by joining in it, he had enabled his principal to get the public money in hands and-convert it to his own use. There were many cases, in which bonds taken as statutory bonds, had been held not to be good as such, and yet good and obligatory by the common law both upon principal and surety. Johnstons v. Meriwether, 3 Call 523.

B. Browne, contra,

submitted that the statutes referred to by the attorney general were not permanent laws, being enacted for the particular occasion. And, he said, as there was no existing law at the time this bond was executed, authorising the sergeant of the hustings court to collect public taxes, or the court to appoint a public collector for the city, or to take a bond from him, the bond was null and void as to the surety at least. Branch v. Commonwealth, 2 Call 510; Stuart v. Lee, 3 Call 421; U. States v. Morgan, 3 Wash. Circ. Court Rep. 10. Then, supposing the bond in question not good as a statutory bond, how could it be good under the common law? The bond is taken to the governor and his successors: if not put in suit during the term of office of the governor to whom it was made payable, no suit could ever be brought on it; for, surely, the governor’s successors could not maintain the action without express authority of law. This alone was conclusive. But as the collector was appointed, so the bond was taken, by the hustings court, contrary to the policy of the law; which has ever been to confine the collection of the public revenue, to officers appointed by the law itself; sheriffs, or coroners, or collectors appointed under special circumstances in the manner prescribed by law. This was an unauthorised interference of the hustings court in the collection of the public ^revenue; and it would be of mischievous consequence to give any countenance to such a practice.

*

Bond Taken by Court without Authority of Law-Effect as to Surety. — For the proposition, tbat a bond taken without authority of law and also against the policy of the law is not valid and obligatory on the surety, the principal case is cited in Monteith v. Com., 15 Gratt. 186; Gibson v. Beckham, 16 Gratt. 324: Morgan v. Hale, 12 W. Va. 726; Porter v. Daniels, 11 W. Va. 255. See monographic *note*on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.

This court concurred with the chancellor, and affirmed the decree.