Commissioners against Canan.
A suit and judgment against a debtor will not bar an action on a collateral covenant of sureties to secure the payment of it.
ERROR to Cambria county.
This was an action by the commissioners of Cambria county for the use of the commonwealth against' Moses Canan, John Murray and James C. M’Guire, esquires. Moses Canan had been the treasurer of the county, and his accounts were settled with the commonwealth, and balance found to be due by him for tavern licenses; for this balance he was sued by an action for money had and received, *108a judgment rendered against him, a fieri facias issued, his personal property sold, and the proceeds applied to former levies. This was an action subsequently brought against him and his sureties, on his official bond; and the only question which arose was, whether the judgment in the action against Moses Canan was a bar to this. The court below (Young, president) was of opinion that it was not, and rendered a judgment, for the plaintiff.
Stanard and Fetterman, for plaintiff in error,
cited, Tom v. Goodrich, 2 Johns. Rep. 213.
Bell, for defendant in error,
cited, act of 30th March 1811, Purdon's Dig. 766 ; Carmack v. Commonwealth, 5 Binn. 184.
This is a proceeding against sureties on a bond conditioned for the collateral performance of a covenant to pay over, which certainly was not merged in the action for money had and received by the principal. The action was not on the bond, the condition of which was to pay only in case the principal did not; but on the direct evidence of the debt which arose out of the receipt of the money: and it surely could not make the case the worse for the creditor, that the debt had been established and default of payment conclusively proved by a judgment at law. If a judgment directly for the debt were to bar an action on a collateral covenant to secure payment of it, then a recovery against an administrator, in the first place, would prevent a recourse to his administration bond, which, however, is had every day. The judgment therefore was properly rendered for the plaintiffs.