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IN SENATE,

March 27, 1833.

REPORT

Of the committee on the judiciary, on the petition of Samuel King.

Mr. Lansing, from the committee on the judiciary, to whom was referred the petition of Samuel King for relief,

REPORTED:

That it appears by the petition that in the month of January, 1823, the petitioner, together with other persons, became bail under the statute, for Joseph Wilson, then being the sheriff of the county of Allegany; that owing to the neglect and misconduct of the said Wilson, the bail were made liable on their bond as such bail; that judgment was recovered in favor of the people of this State, against the said Wilson and his bail, on their said bond, in the supreme court of this State; that the said judgment was recovered by reason of the said Wilson not returning, as by law required, certain warrants against certain town collectors of the said county of Allegany, issued by the county treasurer of said county; that the said liabilities have rendered the said petitioner and his co-sureties insolvent, and in the language of the said petitioner, "have brought him and family to the very threshold of poverty;" and that the petitioner states, with these liabilities impending over him, he feels unable to transact business with a view to supporting his family, "without a removal," or at least a very great mitigation and reduction of his liabilities to the State, by reason of his being such bail. For these reasons, the petitioner prays that he may be released from all liabilities to the State, so that he may pursue his avocations "without any disturbance or molestation" by reason of said liabilities.

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The committee, although they regret the unfortunate situation in which the petitioner and his associates are placed, cannot see that their misfortunes are of that nature, which would with propriety come within the sphere of legislative relief.

The committee can see nothing in the facts contained in the petition, that would warrant the Legislature to interfere, either as matter of right or equity. The facts most clearly show that the State have no right to interfere in the judgment, from which relief is sought; and that all questions arising on or in relation to the same, are between the county of Allegany and the said Wilson and his bail. Although the bonds required of sheriffs, and other official bonds, are given to the people of the State by name, yet the State have no direct interest in them, but hold them merely quasi trustees, for the benefit of the individuals who acquire rights under them by any misconduct or negligence of the officer. The suits commenced on a sheriff's bond, although brought in the name of the people of the State, are instituted on the application and for the benefit of the persons whose rights and whose interests have been affected by the misconduct of the officer, and against which misconduct the bond is taken as an indemnity. The party injured, in addition to the responsibility of the sheriff, is entitled to the security which the situation, circumstances and responsibility of the sheriff's bail furnish. Such being the case, the Legislature could not release a judgment recovered on a sheriff's bond, for the protection and enforcement of an individual right, without assuming upon itself, equitably at least, a responsibility to the person interested, in and by whose procurement such judgment was obtained to the amount of his rights in the same. The committee feel assured that the Legislature would not in this indirect mode, do what they would not do directly, assume upon itself the responsibility of responding to individuals for all damages they may have sustained by reason of the misconduct of a public officer. A compliance with the request of the petitioner, the committee are of opinion, would furnish strong equitable claims upon the Legislature for such relief.

The committee are aware that it may be said the judgment mentioned by the petitioner was not procured on the application of an individual, but for the non-payment of public taxes. But the committee repeat, that the county of Allegany, or rather a few towns in said county, have the sole interest in the judgment. It was recovered by reason of the said Wilson not returning warrants issued

against various collectors of said county, under the statute for the collection of taxes. For aught that appears, no portion of the taxes directed to be levied were for the benefit of the State treasury. But admit that a portion was a State tax, and there had been a failure in their payment to the treasury, the remedy of the State is not on the sheriff's bond, but a resort to the county. From the lapse of time since the default referred to occurred, the committee feel justified in presuming, that all defalcations and deficiencies, as far as concerns the State, have, ere this, been supplied by the proper authority of the county of Allegany, and paid into the State treasury. If so, it is evident that the county of Allegany, or some of the towns in said county, which may have been subject to a proportion of re-taxation by reason of said default, have the exclusive right to all advantage from the forfeiture of the condition of said bond for their indemnity. And should the Legislature release and discharge this indemnity, the county and towns interested would have an equitable claim upon the State to refund the moneys they have so paid into the treasury.

The committee have therefore come to the conclusion that the State have no claim against the said petitioner to release; that any interference on the part of the Legislature with the aforesaid judgment, or with the bond on which it is founded, would be wrong in principle, and as a precedent, most injurious in its results.

The committee are therefore of opinion, that the prayer of the petitioner ought not to be granted, and that he have leave to withdraw his petition.

IN SENATE,

March 27, 1833.

REPORT

Of the judiciary committee, on the petition of Derick Neff and Philip Forncrook.

The committee on the judiciary, to which was referred the petition of Derick Neff and Philip Forncrook,

REPORT:

The petitioners represent that William Lowell, late of Glen, Montgomery county, deceased, on the 25th of August, 1828, made his last will and testament, and thereby bequeathed to the petitioner, Neff, a span of horses, harness and wagon, ten yards of muslin cloth and a great coat.

That he also bequeathed to Patty Forncrook, wife of the other petitioner, all his beds and bedding. That no other bequest or devise was made, except two suits of clothes to Joseph Brown, and an umbrella to Jane Cooper.

That shortly after making the will, the said Lowell departed this life, and letters of administration, with the will annexed, were in December, 1828, granted by the surrogate of Montgomery to Philip Forncrook, one of the petitioners.

That the administrator made an inventory of all the personal property of the testator, including the personal property bequeathed, except the umbrella.

That the personal property was applied in payment of funeral expenses and debts; but not being sufficient to pay all his debts, application was made to the surrogate for leave to sell the real estate. [Senate, No. 93.]

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