Miller v. Commonwealth , 5 Watts & Serg. 488 ( 1843 )

The opinion of the Court was delivered by

Rogers, J.

The lien of the official bond of a sheriff, under the construction given to the Act of^1803, is unlimited both in duration and extent, as is ruled in Snyder, administrator of Reigart v. The Commonwealth for the use of Passmore, (3 P. R. 286). If, therefore, this case falls within the principle there decided, it is an authority in point adverse to the plaintiff in error. But the plaintiff in error contends it is governed by the Act of 1834; but without undertaking to decide whether the 74th section relied on, alters the existing law in these particulars, we conceive it can have no effect whatever on this recognizance, which was given by the sheriff before the passage of the last-named Act. In Myers v. The Commonwealth it is ruled, that the Act of the 14th June 1836, which provides a remedy on the official bond of a sheriff, is not applicable to bonds which bear date prior to the passage of that Act. It is ruled, that they must be sued according to the provisions of the Act of the 28th March 1803, and in this way only can the plaintiff recover the amount of the damage sustained by the official misconduct of the officer. That alteration in the .law, although it may affect the lien of a judgment or recognizance then existing, is within the constitutional power of the Legislature^Jt is not intended to deny, but we must all agree, that it is a power of an extraordinary nature, and should consequently be exercised with great tenderness, and it is undoubtedly the duty of the judiciary, not to infer such an intention from doubtful expressions, much less should such a construction be given, where the Legislature have indicated otherwise in sufficiently clear terms. The 74th section of the Act of the 15th April 1834, does not embrace a recognizance, except given under that Act. This we think very clear, for the Act prescribes the form of the recognizance thereafter to be taken from sheriffs and securities, and the 74th section enacts that “ all the real estate within the same county of a sheriff and coroner, &c., shall be bound by a recognizance taken in manner aforesaid (clearly referring to the 64th section) as effectually as by a judgment to the same amount, in any court of record of such county.” The recognizance is to be certified to the prothonotary of the several Courts of Common Pleas. The Legislature did not intend to interfere with recognizances previously taken, or to alter in any manner the remedies to enforce them, or the duration of the lien. It would be difficult to assign a reason why such an alteration was necessary as to existing rights, for it would be dangerous to disturb them, even as regards remedies, much less as to the duration of the lien. Statutory limitations, operating upon previous claims, cannot be introduced except with extreme precaution and under extraordinary circumstances. Creditors may be taken by surprise, and many an honest claim lost, the consequence of tenderness and forbearance towards unfortunate debtors. And this case furnishes an example in point, for we are warranted in saying, that the plaintiff would not have neglected to push his lien, except from the impression derived from the case of Reigart v. Passmore, that his debt could not be jeoparded by the delay.

It is almost needless to add, that there is nothing in the objection, that the terre-tenant had no notice, for the record of the recognizance was notice to the whole world. Nor is there anything in the suggestion, that the terre-tenant is a surety. He is a purchaser with notice of the lien, and consequently stands in the same situation with his vendor. The doctrine of principal and surety, therefore, does not apply.

Judgment affirmed.