Clement v. Commonwealth ex rel. Mettler

Mr. Justice Trunkey delivered the opinion of the court, Judicial authority has not abridged the benefits of the statutory provision, that in all actions the “ courts shall have power, in any stage of the proceedings, to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party.” Adding the name of the Commonwealth as legal plaintiff was within the letter and spirit of the statute, and an amendment which the court had no power to refuse. Beula Mettler commenced suit “ on the official bond of William D. Haupt, as prothonotary of the county of Northumberland, in the sum of five thousand dollars,” as appears in both praecipe and summons; and the declaration, filed before the end of seven years from the date of the cause of action, was drawn in the name of the Commonwealth of Pennsylvania suggesting Beula Mettler as plaintiff. The ground of the suit and the name of the plaintiff in interest were explicitly set forth in the original writ and pleadings, and have not been changed; the omission of the. uninterested but necessary legal plaintiff has been supplied. Surely no real injury was done to the defendant, he was served with process, appeared to the action, and knew the law permitted amendment. This is not [112] the case of a change in the subject of the action, nor of the name of the actor in bringing the suit, nor of the addition of a defendant, but of adding a mere legal plaintiff who had nothing to do in the commencement or conduct of the suit. Therefore, the principle stated in Kaul v. Lawrence, 23 P. F. Smith 410, relied on by the defendant, will not avail him. Had the name of Beula Mettler been struck out and the name of another inserted, or another plaintiff in interest added, or the description of the subject of the suit changed, then, indeed, the defendant could have well insisted on the principle that no amendment should deprive him-of the benefit of the Statute of Limitations or other meritorious defence, as against the actor added, or the subject newly described. The second question presented is, whether separate actions may be brought against the obligors on the official bond of a prothonotary, which is joint and several, as it is required to be by statute. This is clearly answered in the opinion of the learned judge of the Common Pleas. The rule is, that when the obligation is joint and several, the obligee is at liberty to sue all the obligors jointly or each of them separately. Unable to gainsay the general application of the rule, the defendant contends it is abrogated by the Act of June 14th 1836, Pamph. L. 639, as respects actions on official bonds. Prior to this statute, as many suits might have been brought on an official bond, as there were persons holding several interests, as often as damages were sustained, and that was the mischief it was intended to remedy by permitting but one suit to be so conducted as to give every person having a claim the advantage of a trial as fully as if he had a separate action. The act defines and regulates the remedy on official bonds so as to require every person interested to join in the suit commenced, instead of bringing one for himself. The pendency of a suit on such bond is a bar to a subsequent action on the same instrument against the same parties, and may be so pleaded: Commonwealth v. Straub et al., 11 Casey 137; Commonwealth v. Cope et al., 9 Wright 161. In those cases the actions were against the same parties as in the former suits, and there was no question as to the right to bring a separate action against each obligor. Had the legislature intended to take away such right, it would have been easy to say so and also highly proper to have defined the procedure where one or more of the obligors had died. A right at common law is not abrogated by statute, unless there be clear repugnancy. The act contains no prohibition of separate suits against the officer and each of his sureties. It provides that the obligors may plead performance of the condition of the bond so far as respects the person or persons conducting the suit; and that may be done as readily when sued separately as jointly Judgment affirmed.