Foxcroft v. Nevens

Weston J. With regard to the first point taken by the counsel for the plaintiffs, we are very clear that the default of the principal can have no effect to charge the sureties. The declaration is tobe taken as true only against the party defaulted. The provision of the statute relied upon, cannot fairly be considered as extending further. The case of Dawes v. Shed, 15 Mass. 15, and of Baytics v. Davis, 1 Pick. 206, are authorities to this point. The liability of the sureties depends upon the legal construction of the condition of the bond. By this condition, JYevens, the principal, was well and truly to collect all such rates as should be committed to him, for which he should have a sufficient warrant, under the hands of the assessors according to law ; render a due account thereof, and pay over the same. The first act was to be done by the assessors of the town in whose behalf this action is prosecuted. They were to commit rates or assessments to the collector ; with a sufficient warrant for their collection. How this is to be done the statute prescribes. The assessments thus to be committed, are to be under the hands of the assessors, or the major part of them. It appears in the case before us, that no assessments, under the hands of the assessors, were committed to the collector. That this is an essential requisite, which cannot be dispensed with, we have decided in the case of Colby v. Russell & al. 3 Greenl. 227, in which similar language was used ii; [76] a private statute. The collector therefore was clothed with no-sufficient' warrant or authority to collect, by any compulsory method, any of the sums borne on the list, which was put into his hands. It would seem, from the express language of the condition, that the sureties undertook for the fidelity of their principal, when he should be furnished with the legal and proper authority, necessary to the effectual discharge of his duty. This not having been done, we cannot extend their liability by construction, beyond the bounds by which it is expressly qualified and limited in plain and explicit terms. It is contended however that, although the collector had no means of compelling payment, yet if persons borne on the list, waiving alkéxceptions to the regularity of the proceedings, had voluntarily paid the sums set against their names, the collector might well receive them, and that it became his official duty to account for, and pay over monies which might thus come to his hands, more especially as it is insisted that persons paying, under these circumstances, could not legally reclaim or recover back the same. All this may be true ; yet the language of the condition does not appear to be broad enough to embrace this part of his official duty ; if such it is to be considered. Had the bon$ been conditioned for the faithful discharge of his duty as collector which the statute requires, the liability of the sureties would doubtless have been commensurate with his duties ; and we are not prepared to decide that the facts in this case would not have constituted a breach of the condition of sucha bond. But-the limitation here extends as well to the sums, which were to be accounted for and paid over, as to those which were to be collected ; namely to the sums which should be contained in the rates or assessments committed to him, and for the collection of which he should have a sufficient warrant. Upon the whole, considering the special terms of the condition of the bond before us, and that the insufficiency of the authority of the collector, arises from the negligence of the officers of the town, in whose behalf the plaintiff prosecutes this action, we are satisfied that the jury were rightly directed by the judge, who presided at the trial ; and that there must be Judgment on the verdict.