
    The State, v. The Executors of Joseph Baskin, deceased, And the State, v. Lewis G. Patterson.
    The bond contemplated by the Act of 1839, to be given to the Ordinary, by an Executor, for purchases made by him at the sale of his testator’s property, is not a money bond; but a bond conditioned to account to the parties interested, for the purchase money and interest, when the property sold for its value; or, if it did not, then to account for its actual value.
    The sureties of an Ordinary are not l.able for money unlawfully received and wasted by him.
    The sureties of an Ordinary are liable for his neglect to take the bond prescribed by the Act of 1839. In not doing so he fails ‘‘well and truly to perform the duties of his said office.”
    Tried before Mr. Justice O’Neall, Kershaw, Spring Term, 1846.
    The first case was an action of debt, on the official bond of the late Ordinary of Kershaw District. It appears, that a part of the personal estate of a deceased testator had been sold under the order of the Ordinary, and purchased by the executor at his own sale. The executor paid the Ordinary the cash part of the purchase money, and gave a bond and security, with a mortgage of the property, lor the payment of the balance. When the bond fell due, he paid in like manner the entire amount.
    The executor, some time after, demanded payment from the Ordinary of the money he had; and, with this demand, he was unable to comply. Under the direction of the presiding Judge, the jury rendered a verdict against the defendants, whose testator had been a surety of the Ordinary. The defendants appealed and moved for a new trial, on grounds which will appear in the opinion.
    J. M. DeSaussure, for the motion.
    Chesnut, contra.
    
    The second case, differing only in a slight degree from the first, was considered in connection with it. The difference appears in the opinion.
   O’Neall, J.,

delivered the opinion of the Court.

In these cases it is necessary in addition to the facts stated in the first case, to add the state of the pleadings in the second. In it, the breach of the Ordinary’s official bond, assigned by the replication, is, that he did not take the bond from the purchaser (the executor,) as required by law. This is met by a double rejoinder, to wit: 1st., a traverse. 2d., that the plaintiff has not been damnified by it. Issue has been taken on both these rejoinders. It is wrong pleading thus to rejoin; but as the parties have waived the objection, the Court will not notice it further. The pleading in this case was not brought to my view on the circuit, and hence it was not before stated.

The first question which arises in both cases, is, whether the money bond and mortgage taken by the Ordinary from the ex. ecutor (the purchaser at his own sale) is a compliance with the Act of ’39. The 1st section of that Act, (Acts of ’39, p. 62,) provides, “that it shall be lawful for any executor or executrix, administrator or administratrix, to become a purchaser, at the sales of the estate of his or her testator or intestate, under whatsoever authority the said sales may be made, and the property so purchased shall be vested in him or her; but he or she shall be liable to the parties interested, for the actual value of the property at the time of sale, in cases where it shall have been sold at an under price.” This legalized what was before perhaps doubtful, the purchase by an executor or administrator at his own sale; but at the same time declared such purchaser’s liability for the actual value, where the property sold for less. When it sold for the full value, the liability was left on the general footing of an executor’s or administrator’s final accounting. As an administrator gives bond and sureties for the faithful administration, on its grant, his eventual liability for his purchases was supposed to be sufficiently secured. But an executor giving no such bond, it was thought prudent to provide further: and accordingly the 2d section was passed, which enacted, that if any executor or executrix shall purchase any property at the sales of the estate of his or her testator, he or she shall give bond with surety to the Ordinary of the district, conditioned to account for the purchase money of the said property.” Reading this clause in connection with the rest of the Act, and looking to the reason, why the administrator was not also required to give bond and surety for his purchase, it is plain that the bond contemplated by the Act was not a money bond, but a bond conditioned to account to the parties interested for the purchase money and interest, when the property sold for its value: or if it did not then to account for the actual value, with interest thereon. It is therefore too clear to admit of argument, that the Ordinary did not do his duty in taking the bond which he did take.

It is now necessary to inquire, in Baskin’s case, who was one of the securities of the Ordinary, and in whose case the pleadings rest the right to recover on the Ordinary’s receipt of the money, whether he is liable on the pleadings as they stand? The Court is of opinion that he is not. They think, and to their judgment 1 yield my circuit opinion, that his receipt of the money was unlawful: and that therefore his sureties are not liable for money so received by him.

In Patterson’s case, there is no doubt he is liable for the Ordinary’s failure to take the proper bond. For in that respect, he did not “well and truly perform the duties of his said office:” and the breach of the bond is plain and palpable. In Boggs v. Hamilton, 2 Con. Rep. 382, it was held that an Ordinary, who took no administration bond, was liable to the parties in interest, and became, as the case expresses it, surety for the administrator. That may be true in that case, and still I do not perceive that the Ordinary here may not be primarily liable. He made such an order and took such a bond, as enabled him to receive and waste the proceeds of the sale of the property. This was plain damage to all parties resulting immediately from his failure to do his duty, and as a matter of course his sureties are liable for it. In Patterson’s case, therefore, the verdict is right upon the pleading and the facts, arid the motion is dismissed: but in Baskin’s case, the verdict cannot be supported upon the pleading, and must be therefore set aside, and a new trial ordered; but the plaintiff has leave to strike out the replication to the plea of performance, and to put in a fresh replication assigning the failure to take bond under the Act of ’39, as the breach; to which the defendants have leave to rejoin, and the plaintiff to sur-rejoin, and the parties to continue the pleadings until an issue is properly made up.

Richardson, J., and Evans, J., concurred.

This case was heard before Withers J. took his seat.

Wahdlaw, J.,

dissenting.

The Ordinary should have taken a bond conditioned that the executor would account for the purchase money of the property bought by him. This bond would have been for the benefit of the persons entitled to have the account: without it the executor would have been liable to them, but it would have served to secure his accountability. The neglect to take the bond was an omission of duty for which the Ordinary was liable to the persons injured thereby; and upon his official bond his sureties are liable to the same extent as the Ordinary would have been for this omission. Now, who were injured by the Ordinary’s neglect, and to what extent? In considering this, we must lay out of view the payment made by the executor to the Ordinary— for in that transaction the Ordinary was not acting virtute officii. All reference to the bond for payment of money which the Ordinary took and gave up, must also be avoided: for if by giving up that bond the ordinary has committed a breach of official duty, it is not the breach which is assigned, but the omission to take any bond. By omitting to take a bond, no injury was done to the executor: of that he cannot complain—and if he have in his own wrong paid his money to the Ordinary, his action to recover back the money lies against the man who received it, not against the officer who had no right to demand or receive it. The legatees and creditors may have been injured by the Ordinary’s omission—but not if the executor rightfully applied the purchase money to debts, or otherwise accounted for it; not in fact, if the executor be now solvent, and when called to account either prove that he is in no default concerning the money, or pay what may be decreed against him. It seems to me that the case is just as if the Ordinary had neglected to take an admin, istration bond. Could the distributees of the estate thereupon recover against him the amount of the Inventory, or other amount, without pursuit of the administrator? The Ordinary would by his neglect become himself surety of the administrator- and be liable to the same extent as a surety. The sureties to his bond should not be in a worse condition, or answerable beyond the same measure of liability. See Boggs v. Hamilton, 2 Mills, 388. Suppose in this case that the legatees collect the whole sum found from Patterson, or the executors of Joseph Baskin—shall they again have the money from the executor upon his accounting, or shall the benefit of these suits, in effect and contrary to the opinion of this Court, go to the executor by a credit given to him for the sum collected? Or shall these defendants be subrogated to the rights of the legatees, and recover over against the executor? The Ordinary himself could have no recourse to the executor, because he has the executor’s money;—but by the receipt of it, his sureties not being privies to his private acts, are in nowise bound. Suppose that upon accounting it be found that the whole estate is required for debts; shall the legatees still have the sum recovered from Patterson, or if the executor be solvent, shall recovery then be again had against the sureties at the suit of the creditors? How can it now be known that the legatees are entitled to any of this money? I am of opinion that the pleading is bad—but no objection has been taken to it, and one of the issues is, that the persons suing have not been damnified. Even without such issue, upon a bond for performance of covenants, damages can be assessed only according to the evidence given of injury sustained.

I concur, that upon the issue made in the case against the executors of Baskin, there could be no recovery against them. In the case against Patterson, I think the verdict should have been, not for the whole purchase money for which the executor is accountable, but only for such damages as the Ordinary’s default may have occasioned to the persons who are suing in the name of the State.

FRost, J., concurred.  