Commonwealth v. Singer

Opinion by Porter, J., The defendant, W. A. Singer, having been duly elected tax collector for the borough of Freeport, in the county of Armstrong, duly presented his official bond, with the other defendants as sureties, for the year 1902 to the court of quarter sessions for approval on July 9, 1902, as required by the Act of June 6,1893, P. L. 333. The bond was dated July 8,1902, and was approved by the court of quarter sessions of Armstrong county on July 9, 1902, as the official bond of W. A. Singer, as tax collector for the borough of Freeport, and was on said day filed, together with the oath of office of said Singer, as tax collector, in the office of the clerk of said court, as required by the Act of June 25, 1885, P. L. 187. The bond was conditioned in the exact language required by the act of June 25, 1885, and was in the exact form prescribed by that statute, except that instead of the commonwealth of Pennsylvania [600] being made the obligee therein, as provided by the statute, “the Commissioners of Armstrong County, Pennsylvania,” without naming them, were the obligees. The collector failed to account according to law for the school taxes for the school district of' the borough of Freeport collected by him, and the school district authorities brought this action against him and his sureties upon the above-mentioned bond. The school taxes in question were within the express condition of the bond, and the only ground upon which the defendants allege exemption from liability is that the commonwealth of Pennsylvania should have been named as obligee in the bond, instead of the commissioners of Armstrong county. The liability of sureties in official bonds is not generally measured by the law requiring the surety, but by that imposing the duties on the officer; when the bond is given as an official bond and the condition imposes no liability not authorized by law, the mere fact that the obligee named is not the one provided by the statute does not vitiate the bond, nor relieve the officer or his sureties from liability: Dyer v. Covington Township, 28 Pa. 186. The tax collector and his sureties having executed the bond in question as his official bond, and the same having1 been approved by the proper court as such, and the collector having received the school taxes which were clearly within the express condition of the bond, the officer and his sureties are clearly estopped from denying liability for the money so collected: McClure v. Commonwealth, 80 Pa. 167. A variance between a statutory bond and the requisitions of the’law is fatal only when the condition would impose a greater burden on the obligor than the law allows, and in such case it is fatal only as to the excess of the obligation imposed: Commonwealth v. Laub, 1 W. & S. 261; McCaraher v. Commonwealth, 5 W. & S. 21. The bond in question was voluntarily given for a lawful purpose, and was nob against any statutory prohibition; it may therefore be enforced according to its terms, even though not in the form required by the statute: Franklin for use of the Commonwealth v. Hammond et al., 45 Pa. 507; Commonwealth v. Clipsham, 16 Pa. Superior Ct. 50. The liability of the defendants upon this bond for the school taxes in question is too clear for discussion ; the only question is as to the form of the action for their recovery. [601] The action was brought in the name of the commonwealth to the use of the school district of Freeport borough; the plaintiff filed a statement in the name of the commonwealth as the legal plaintiff, setting forth the election of Singer as tax collector, that he took the oath of office, filed the bond above recited and by virtue of his office collected the taxes which the school district now seeks to recover, and that after the exonerations' and commissions were deducted on said school tax duplicate, there was a balance for which said Singer failed to account to the amount of $1,269.82. Attached to and made part of this statement was a copy of the bond which showed that it named “ the Commissioners of Armstrong County, Pennsylvania ” as obligee, instead of the commonwealth of Pennsylvania. It thus clearly appeared from the statement filed that the use plaintiff was entitled to recover of the defendants, if the facts alleged were true, the amount which it claimed; but it also appeared upon the face of the statement that the commonwealth of Pennsylvania was not the obligee in the bond and should not have been made the legal plaintiff: Glover v. Wilson, 6 Pa. 292. The question was one which went not to the merits but to the form of the action, and the defendants might have raised it bjr a demurrer. The appellants entered the plea of the general issue and went to a trial upon the merits, which resulted in a judgment against them. The technical objection to the form of the action was one which could have been cured by amendment if the question had been raised in the court below by a demurrer. The form of the action worked no prejudice to the cause of the defendants at the trial upon the merits, and we will permit the amendment to be made in this court. The bond having been executed in favor of “ the Commissioners of Armstrong County, Pennsylvania,” an action might have been brought in tire irame of Armstrong county, as the legal plaintiff, to the use of the school district: Clarke v. Potter County, 1 Pa. 159; Dyer v. Covington Township, 28 Pa. 186; Lehigh County v. Gossler, 24 Pa. Superior Ct. 406; Commonwealth v. Snyder, 1 Pa. Superior Ct. 286 ; Commonwealth v. Allen, 2 Pa. Superior Ct. 175. The settlement by the borough auditors of the account of Singer as collector of school taxes for the year 1902, made February 23, 1904, was properly admitted in evidence. There [602] was no legal evidence that the borough auditors had previously made any settlement of the account of Singer as tax collector. Even if the statement, of the account of the treasurer of the school district, for the year ending May 31, 1903, had been in evidence, which it was not, and had been held to constitute an audit of the accounts of the collector, this would have been no advantage to the defendants, for the balance shown by that statement to be then due from the collector was $1,519.82, whereas when the accounts of the collector were actually audited in February, 1903-, the balance charged against him was only $1,269.82. The assignments of error are overruled. The plaintiff is granted leave to amend the record by substituting Armstrong county instead of the commonwealth of Pennsylvania as the legal plaintiff, and the judgment is affirmed.