Commonwealth v. Donnelly

The question involved in this case is whether sec. 4 of the Act of April 4, 1798, 3 Sm. L. 331, which provides that “it shall not be lawful for any person or persons whomsoever, to commence and maintain any suit or suits on any bonds or recognizances, which shall hereafter be given or entered into by any person or persons, as sureties for any public officers, from and after the expiration of the term of seven years, to be computed from the time at which the cause of action shall have accrued,” is a bar to an action brought against a surety on the official bond of a recorder, who during his term of office failed to properly index a mortgage; where said action is brought by a subsequent mortgagee more than twelve years after the term of the recorder had ended and more than fourteen years after the negligent act, but within seven years after *624the taking and recording of the second mortgage. A very-plausible argument, accompanied by an excellent brief of cases, is made by the appellants’ counsel in favor of the proposition that, as a right of action did not accrue to the second mortgagee until he suffered injury by the negligent act of the recorder the statute did not begin to run until that date. The precise question does not appear to have been authoritatively decided in this state, and it must be conceded that it is not entirely free from difficulty, but we are of opinion that having regard to the declared purpose of the act, as set forth in the preamble, the learned judge below was right in his conclusion that the action was barred. This conclusion is well sustained by the reasoning of his opinion overruling the plaintiff’s motion for judgment non obstante veredicto, to which we refer for a full discussion of the question.

The judgment is affirmed.