Berks County ex rel. School District v. Levan , 86 Pa. 360 ( 1878 )

Mr. Justice Sharswood

delivered the opinion' of the court,

This was an action on an official bond given by the defendant and two sureties unto the county of Berks, reciting that/ “whereas the above bounded Francis Levan has been appointed by the commissioners of Berks county, collector of county and state taxes for Greenwich township in said county for the year 1871,” and conditioned that the said Levan “shall well and faithfully perform the duties of said appointment as collector aforesaid and pay over the amount of the taxes required to be collected for said township to the county treasurer” within the time limited.

The sixth sect, of the Act of March 24th 1851, Pamph. L. 243, provided that “the collection of state and county taxes in the townships of Maxatawney and Greenwich, in Berks county, shall be given to the lowest bidder for the same,” “ and the difference between the compensation now allowed by law for the collection of such taxes and the bids obtained under the provisions of this sec tion shall be paid into the common-school fund for the purposes of education in said township.”

It appeared that under this section the collection of state and county taxes for Greenwich township for 1871 was awarded to Levan at his bid of $38.90. It appeared also that he had settled in full his duplicate, retaining his full commission of five per cent, on the amount. The difference between the' commission five per cent, and the amount of his bid was $89.30. Whether he is liable on his official bond to the county of Berks for this sum was really the question reserved and upon which a judgment for defendant non obstante veredicto was afterwards entered.

We are of opinion that on the proper construction of the Act of 1851, the collector is legally liable to the county for the whole amount of the duplicate, less the amount of his bid for collection. The difference is to be paid by the county into the common-school fund. Practically the effect of the act is to reduce the commissions to the amount bid. The collector is appointed by the commissioners and is to pay over the taxes collected to the county treasurer. He stands in no relation to the school directors. Some difficulty seems to have arisen in the court below from the fact that the suit on the bond had been marked to the use of the school district. It was mere surplusage. It is the legal party on the record only that is to be looked at, unless indeed a defence should be shown against the equitable party. No doubt this suit was prosecuted for the use of the school district, and if it’ had been shown that Levan had really paid the difference between his bid and the five per cent, commission into the common-school fund, it would have been a perfectly good defence. But nothing of the sort was pretended or offered to be proved. It was an error in the court below to suppose that an equitable plaintiff suing on a bond would be obliged to show his title to the obligation. It is never necessary unless for the purpose of meeting and answering some defence which though good against the legal plaintiff is not good as against him; as for example, payment to the legal plaintiff after notice of the equity. On the whole we think the plaintiff below, the county of Berks, is entitled to judgment on the reserved point.

Judgment reversed and now judgment for the plaintiff in the verdict on the reserved point.