LEA v. YARD, 4 U.S. 95 (1804)

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U.S. Supreme Court

LEA v. YARD, 4 U.S. 95 (1804)

4 U.S. 95 (Dall.)

Lea, Executrix, et al.

Hazlehurst et al.
Dallas, Secretary of the Commonwealth.

High Court of Errors and Appeals of Pennsylvania.

January Session, 1804

ERROR from the Supreme Court of Pennsylvania. These actions depended, chiefly, on the same facts, and principles; and were argued together, both in the Supreme Court, and in this Court. The facts were these:

John Chaloner was appointed an auctioneer for the city of Philadelphia, on the 1st of August 1791, and gave a bond to the secretary of the commonwealth, in the penal sum of 2000l., with two sureties, namely, Leonard Dorsey, and Thomas Lea, who are both since dead. Richard S. Footman was, also, appointed an auctioneer on the 9th of June 1795; and gave a similar bond, with Isaac Hazlehurst, and John D. Coxe, as his sureties. The conditions of the bonds were of the following tenor:

In Chaloner's case: 'Whereas the above bounden John Chaloner was on the first instant re-appointed auctioneer, with authority to make sales by auction at any place or places within the

Page 4 U.S. 95, 96

city of Philadelphia, the district of Southwark, or the township of the Northern Liberties, or Moyamensing, according to law: Now the condition of this obligation is such, that if the said John Chaloner shall well and faithfully execute the aforesaid office of auctioneer according to law; and shall from time to time well and truly account for all public monies, which shall come into his hands, and pay the same into the treasury of the state, agreeably to the directions of the several acts of assembly of this commonwealth, which relate to auctions and auctioneers; then the above obligation to be void, and of none effect, or to be and remain in full force and virtue.'

In Footman's case: 'Whereas by a commission bearing even date with the above written obligation, the above bounden R. S. Footman has been duly appointed one of the public auctioneers in and for the city of Philadelphia: Now the condition of this obligation is such, that if the above bounden R. S. Footman shall well and faithfully discharge and perform all the duties of an auctioneer, and in all things truly and fully comply with, and execute the laws relating to the office of auctioneer, then the above written obligation to be void, otherwise to be and remain in full force and virtue.'

While these bonds, respectively, were in force, Mr. James Yard delivered to Chaloner, as public auctioneer, a considerable quantity of goods to be sold for him. The goods were, accordingly, sold; but Chaloner retained 5,011 dollars of the proceeds, which he never paid over, or accounted for, to Mr. Yard. And, at the same time, he was considerably indebted to the state, for duties received upon sales at auction. Mrs. Gapper, in like manner, delivered to Footman, as a public auctioneer, a quantity of goods to be sold for her; which were, accordingly, sold; but the proceeds never accounted for; although Footman had punctually paid into the state treasury, all the duties, which he had collected.

Chaloner being dead, an action was brought upon his bond, against his executors &c. for the use of the commonwealth, in which judgment was rendered, and the amount of the duties (being less than the penalty) was recovered. [Footnote 1] Mr. Yard, thereupon, issued a scire facias, returnable to December term 1798, against the executors of Thomas Lea, one of Chaloner's sureties; while Mrs. Gapper instituted a suit upon Footman's bond, in the name of the secretary of the commonwealth, for her use. Cases, comprising the foregoing facts (redenda singula singulis) were filed in the actions respectively, with an agreement to consider them as special verdicts, for the purpose of a writ of error; and the general question submitted to the Court, was, Whether an auctioneer's bond is a security for his private customers, as well as for the payment of the duties to the state? [4 U.S. 95, 97]

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