Broughton v. Haywood

• Court: North Carolina Supreme Court
• Writing for the Court: READE
• Citation: Broughton v. Haywood, 61 N.C. 380 (N.C. 1867)
• Decision Date: 30 June 1867
• Parties: MATILDA BROUGHTON and others v. E. G. HAYWOOD and others.

61 N.C. 380

MATILDA BROUGHTON and others

v.E. G. HAYWOOD and others.

Supreme Court of North Carolina.

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, c. 78, s. 5; and this, whether an action on the bond would or would not lie for the money, as received “by virtue of his office.”

The Military Order, No. 10, s. 2, (April 11th, 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.

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.

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, c. 78, s. 5, tried before Barnes, J., at Spring Term, 1867, of the Superior Court of Law for WAKE.

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 exparte 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 $1200, which was received. Among the bonds taken was one given by James M. Harris. Haywood went out of office and his 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.

Moore, and Rogers & Batchelor, for the appellants .

*2 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; State v. Long, 8 Ire., 415; State v. Brown, 11 Ire., 141; White v. Smith, 1 Jon., 4; Holloman v. Langdon, 7 Jon., 49; Miles v. Allen, lb., 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, ss. 245-'6 and 440.

4. Confirmations 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.

5. The words “by virtue” and “under color” mean the same thing. This is apparent from reading secs. 4, 5 and 6 (c. 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 defence 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.

Bragg, Lewis, and Phillips & Battle, contra .

READE, J.

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 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, c. 78, s. 5.

*3 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...