Opinion
(June Term, 1867.)
1. A clerk and master, who sold slaves under a decree in a petition for partition, and instead of taking bond as the decree directed, received cash, is, with his sureties, liable for the amount so received, upon motion for a summary judgment under Rev. Code, ch. 78, sec. 5; and this, whether an action on the bond would or would not lie for the money, as received "by virtue of his office."
2. The Military Order, No. 10, sec. 2 (April 11, 1867), does not forbid the courts of the State to hear and try causes and render judgments and decrees; but it operates in analogy to injunctions against executions after judgment.
3. By PEARSON, C. J. The clerk and master, having sold according to the order, had a discretion to take cash instead of a bond and security, and was liable to a suit on his bond for money received by virtue of his office.
4. When a clerk takes a bond payable six months after date, if the debtor tenders the money at the day, the clerk is bound to receive it without waiting for an order for collection.
MOTION for a summary judgment under Rev. Code, ch. 78, sec. 5, tried before Barnes, J., at Spring Term, 1867, of the Superior Court of Law for WAKE.
Moore and Rogers Batchelor for appellants.
Bragg, Lewis and Phillips Battle, contra.
The defendant Haywood was clerk and master in equity for Wake County in 1860, and upon the renewal of his bond in that year, the other defendants became his sureties.
An ex parte petition was filed in the Court of Equity for Wake, at Spring Term, by the plaintiffs (some of whom were minors) for the sale for partition of certain slaves owned by them as tenants in common. A decree was rendered at that term, for a sale upon six months credit, bond and security to be given by the purchasers. The defendant, Haywood, reported to Fall Term, 1860, that he had made the sale and had taken bond and security from the purchasers, except in the cases of W. F. Askew and P. J. Sterne, who tendered the cash, amounting to $1,200, which was received. Among the bonds taken was one given by James M. Harris. Haywood went out of office and his (381) successor was appointed at Fall Term, 1860. Subsequent to that term Harris paid to Haywood $50, which was credited on his bond before it was delivered to the successor. None of this purchase money was paid into court. At Fall Term, 1862, the sale was confirmed, and an order made granting the petitioners leave to bring suit upon the bond of the clerk and master in a court of law.
The petition, the report of the sale and the several orders referred to were introduced in support of the motion.
His Honor allowed the motion and gave judgment for the sums paid by Askew and Sterne, and the $50 paid by Harris, with interest. The defendants appealed.
1. The money for which the slaves were sold was not received under color of the master's office. Kesler v. Long, 7 Ire., 379; Ellis v. Long, 8 Ire., 573; S. v. Long, 8 Ire., 415; S. v. Brown, 11 Ire., 141; White v. Smith, 1 Jon., 4; Holloman v. Langdon, 7 Jon., 49; Miles v. Allen, ibid., 564.
2. The sale was not confirmed until two years after it was made and after the defendant Haywood had gone out of office, and the petitioners still insisted the decree should be performed in its letter, proceedings being instituted against Askew to compel him to give his bonds. See 1 Phil. Eq., 21. There was no notification by the court of the departure by the master from the decree. The case stands upon the basis that the master received the money under color of his office.
3. No notification after the master went out of office can affect his official deeds or the sureties on his bond. Story on Agency, secs. 245, 246 and 440.
4. Confirmation shall not have relation to the prejudice of another. 2 Th. Co. Litt., 550, note P. 1, 543; note Ki. If such confirmations when clearly made should have this relation they are not readily presumable, because of their injury to private rights.
(382) 5. The words "by virtue" and "under color" mean the same thing. This is apparent from reading secs. 4, 5 and 6 (ch. 78, Rev. Code) together. The 4th was intended for small claims, the 5th for large ones, and the 6th to give 12 per cent damages; and it could not have been intended to give a summary judgment for an act done under color, which could not have recovered by suit on the bond. The sole object of the action by motion was to expedite justice, and not to alter the rule of administering it. The plaintiffs are not excused from assigning the breach of the condition of the bond for which they seek to recover, nor are the defendants deprived of any defense they would have were the action debt on the bond. If any issue of fact is made up, the trial must be by jury, and the jury must find the damages. State Bank v. Davenport, 2 Dev. Bat., 45; Buchanan v. McKenzie, 8 Jon., 91.
For the defendant it was insisted that no recovery could be had by this proceeding, unless the same could be had in an action of debt upon his official bond; and many authorities were cited to show that, in an action upon the bond, no recovery can be had except for some liability incurred by virtue of the office, and that "by virtue of the office" means in the rightful discharge of its duties; as, for instance, money rightfully collected, and not for money wrongfully collected.
It must be admitted that in a suit on the bond there can be no recovery, except for some breach of the bond; and the bond is "conditioned for the safe keeping of the records, the due collection, accounting for and paying all moneys which may come into his hands by virtue of his office, and for the faithful discharge of the duties of his office (383) in all respects whatever." In order to recover in a suit upon the bond, it is necessary to show either: 1. That he did not keep the records. 2. That he did not collect. 3. That he did not account for and pay money which came into his hands by virtue of his office. 4. Or that he neglected to discharge the duties of his office. And then it is insisted that what is charged against the defendant is not a breach of his bond in any of these particulars. Questions upon the liability of officers on their bonds have been so often before the Court, and so fully discussed in the cases cited at the bar, that we forbear any further discussion of them in this case. Nor do we think it necessary to decide whether the act complained of was a breach of the bond, because the defendant may be subjected in this proceeding to a liability which could not be assigned as a breach of his bond. The difference is, that in a suit on the bond the act complained of must be done by virtue of his office; in this proceeding it is sufficient if done by virtue, or under color, of his office. Rev. Code, ch. 78, sec. 5.
But the defendants insist that by virtue and under color mean the same thing. They mean very different things. For instance, the proper fees are received by virtue of the office; extortion is under color of the office. Any rightful act in office is by virtue of the office. A wrongful act in office may be under color of the office. Color in law means not the thing itself, but only an appearance thereof; as, color of title means only the appearance of title. In the case before us the defendant sold the property as clerk and master, received the money and gave a receipt for it as clerk and master, and yet, because he received it before it was due, and before he was ordered to receive it, he insists that he received it wrongfully, when he had no right to receive it as clerk and master, and that, therefore, he did not receive it by virtue of his office, and that there is no breach of his bond in not accounting for it. Now, suppose that to be true, can it be said that he did not receive it (384) under color of his office? Did he not appear to be acting officially? It is not denied that he professed to be, and that he appeared to be, acting officially. And, as sworn officers are presumed to do their official duties correctly, and as every reasonable intendment must be made in favor of their acts, we are to presume that he not only appeared to be acting by virtue of his office, but that he really thought he was acting rightfully. To suppose the contrary would be to impute a grave offense. "For the justices did ever appoint their clerks, some of which after grew by prescription to be officers in their courts. And they did ever appoint those who had the greatest knowledge and skill. And they are to enter, enroll, or effect that which the justices do adjudge, award, or order; the insufficient doing whereof maketh the proceedings of the justices erroneous; than the which nothing can be more dishonorable and grievous to the justices, and prejudicial to the party." Bac. Abr., title "Offices," L. D.
Whether or not the defendant received the money by virtue of his office so as to make him liable in a suit on his bond, we are clearly of the opinion that he did receive it by color of his office, and that he and his sureties are liable in this proceeding.
After the opinions in this case were filed, our attention was called by Mr. Moore to the order of General Sickles, No. 10, sec. 2. We do not consider that order as forbidding the several courts in the State from proceeding with the trial of cases at law or the hearing of cases in equity and rendering judgments and decrees thereon; but that it forbids execution to issue — in analogy to injunction cases when the court proceeds to judgment and the execution is enjoined.
In the case before us section 16 of the order has application, the proceeding being in behalf of a minor, and minors come of age, against a clerk and master. So, although there are other parties who are (385) adults, it is nevertheless necessary for the court to decide the case which is before us by appeal and give judgment, that execution may issue in favor of the minors.
This is our view on the supposition that the cause of action did not accrue until after 19 December, 1860. That depends upon whether the default was in receiving the money in the first instance, instead of taking bond and security (in May, 1860) or in failing to pay over when called on after the year 1860. We are not, however, called on to decide the question, as in either point of view we are of opinion that the order does not forbid the court from rendering judgments and decrees, but only suspends the issuing of execution.
I concur in the conclusion that the defendants are liable to judgment for the money on motion, but I am of opinion also that the money was received "by virtue of his office," and that the defendant, Haywood, and his sureties might have been subjected by suit on his official bond.
The slaves were sold for the purpose of partition, and the object of directing the clerk to sell on six months credit, taking bond and security with interest from date, was not to make an investment, but to enhance the price, by enabling those who did not have the cash in hand to become bidders, so as not to confine the bidding to those who had the cash.
The clerk and master made the sale according to his order, on six months credit. When asked if those who had the cash were not in a condition to give bond with security, were at liberty to bid, he told them that as a matter of course, their bids would be accepted. Suppose he had refused to take such bids; evidently the number of bidders would have been diminished, and the purpose of enhancing the price would have been defeated. So, it seems to me that the put the proper construction upon his order to sell. He thought so, for his report set out that certain bidders paid cash. Had he refused cash bidders, he (386) would have been amenable to the charge of "sticking in the bark," to the prejudice of those for whom he was acting, just as much as if he had made a cash sale, and thereby excluded from binding all who were not prepared with the money; for it was known, many negro-traders were prepared to pay cash, but could not give security; and the order was shaped so as, by its proper construction, to include both classes of bidders. I think, therefore, that in making the sale on six months credit, with the understanding that all who chose might pay the cash instead of giving bond and security, and also in receiving the money, the clerk acted in conformity with his order, and received the money by virtue of his office, and his default was in not paying it over when it was called for.
For what reason has the sale to be made on six months credit, taking bond and security with interest from date, and why should the clerk and master be held to the letter, and not be allowed to exercise his judgment as to the true construction of the order of sale? Was it because he was considered unfit to be trusted with the money? No! For his official bond secured that. Was it for the sake of making $30 interest on $1,000? No! For an investment of the fund was not in contemplation of the court. So the object was to enhance the prices by increasing the number of bidders. That was best promoted by letting in cash bidders as well as credit bidders, which more than compensated for a loss of $30 interest, to say nothing of the delay and expense of collection. Thus the gravamen is, that in this instance the funds have been misapplied. But for that it would have been "all right." I think the case is like that of an executor or administrator who sells on six months credit, as required by the statute, but allows some bidders to pay cash.
I am also of opinion that when a clerk takes a bond payable say six months after date, if the debtor tenders the money at the day, the clerk is bound by the contract to receive it, and is not required to wait (387) for an "order of collection." In other words, an order to collect is necessary, not to give the clerk authority to receive the money when a bond falls due, but to instruct him to bring suit on the bond, and compel payment. Consequently all such payments are received by him virtute officii, and accountability is secured by his official bond.
PER CURIAM. There is no error.
Cited: S. v. Morrison, 63 N.C. 510; Greenlee v. Sudderth, 65 N.C. 473; Brown v. Coble, 76 N.C. 393; Varner v. Arnold, 83 N.C. 209; Thomas v. Connelly, 104 N.C. 349; Smith v. Patton, 131 N.C. 398; Hannah v. Hyatt, 170 N.C. 638; Thomas v. Carteret, 182 N.C. 390.
APPENDIX
[By direction of the Court, the reporter adds to this number the address delivered to the bar attending the Circuit Court of the United States for this district, by his Honor the Chief Justice of the United States, upon the first day of his attendance during the term in June, 1867;and also an opinion by the Circuit Court upon an interesting case which came before it during that term.
Upon Thursday, 6 June, their Honors, Chief Justice Chase and Judge Brooks, with a numerous attendance of the bar being present, the Chief Justice read the following address:]
GENTLEMEN OF THE BAR: Before proceeding to regular business I think it proper to address a few observations to you.
For more than four years the courts of the Union were excluded from North Carolina by rebellion. When active hostilities ceased in 1865, the National military authorities took the place of all ordinary civil jurisdiction, or controlled its exercise. All courts, whether State or National, were subordinated to military supremacy; and acted, when they acted at all, under such limitations and in such cases as the commanding general, under the direction of the President, though fit to prescribe. Their process might be disregarded, and their judgments and decrees set aside by military orders. Under these circumstance the Justices of the Supreme Court, allotted to the circuits which included the insurgent States, abstained from joining the District Judges in holding the Circuit Courts.
Their attendance was unnecessary, for the District Judges were fully authorized by law to hold the Circuit Courts without the Justices of the Supreme Court, and to exercise complete jurisdiction in the trial of all criminal, and almost all civil causes. And their attendance was unnecessary for another reason. The military tribunals at that time, and under the existing circumstances, were competent to the exercise of all jurisdiction, criminal and civil, which belongs, under ordinary (390) circumstances, to civil courts.
Being unnecessary, the Justices though that their attendance would be improper and unbecoming. They regarded it as unfit in itself and as injurious, in many ways, to the public interests, that the highest officers of the Judicial Department of the government should exercise their functions under the supervision and control of the Executive Department.
At length, however, the military control over the civil tribunals was withdrawn by the President. The writ of habeas corpus, which had been suspended, was restored, and military authority in civil matters was abrogated. This was effected, partially, by the Proclamation of 2 April, and fully, by the Proclamation of 20 August, 1866.
These proclamations reinstated the full authority of the National Courts in all matters within their jurisdiction; and the Justices of the Supreme Courts expected to join the District Judges in holding the Circuit Courts, during the interval between the terms at Washington.
On 23 July, 1866, however, act of Congress reduced the number of the Circuits, and changed materially the Districts of which the Southern Circuits were composed, without making or providing for an allotment of the members of the Supreme Court to the new Circuits;and without such allotment the Justices of that Court have no Circuit Court jurisdiction. The effect of the act therefore was to suspend the authority of Justices to hold the Circuit Courts in the altered Circuits.
This suspension was removed by the act of 2 March, 1867, by which a new allotment was authorized. Under this act the Justices of the Supreme Court have been again assigned to Circuit duties; and the Chief Justice has been allotted to hold, with the District Judges, the National Courts in the Circuit of which the District of North Carolina is made a part.
(391) I am here, therefore, to join my brother, the District Judge, in holding the Circuit Court for this district. It is the first Circuit Court held in any District within the insurgent States, at which a Justice of the Supreme Court could be present, without disregard of superior duties at the seat of government or usurpation of jurisdiction.
The Associate Justices allotted to the other Southern Circuits will join in holding the courts at the regular terms prescribed by law, and thus the National civil jurisdiction will be fully restored throughout the Union.
It is true that military authority is still exercised within these Southern Circuits; but not now as formerly, in consequence of the disappearance of local civil authority, and in supervision or control of all tribunals, whether State or National. It is now used under acts of Congress, and only to prevent illegal violence to persons and property, and to facilitate the restoration of every State to equal rights and benefits in the Union. This military authority does not extend in any respects to the courts of the United States.
Let us hope that henceforth neither rebellion nor any other occasion for the assertion of any military authority over courts of justice, will hereafter suspend the due course of judicial administration by the national tribunals in any part of the Republic.
(392)