
    *Stuart v. Madison.
    [Wednesday, Oct. 17, 1798.]
    Clerk of Court— Liability— Money Paid to Deputy.— The Clerk of a Court is not liable for money paid to bis deputy, (without the intervention of the Court,) by a defendant who is sued.
    Same — Same—Same.—In such a case, if the money had been paid to the Clerk himself, he would have been personally liable ; but his securities would not.
    Robert Stuart, executor of Thomas Stuart, brought an action on the case against the executors of John Madison, in the County Court of Botetourt. The declaration contained two counts, 1. Por money had and received by the defendant’s testator to the use of the plaintiff’s testator; 2. Por money “paid into the office of the said John Madison, (who was then Clerk of the Court of Augusta,) by a certain Joseph Love, a debtor of the plaintiff’s testator, who had been sued for the same; which money was misapplied by said John or his agents.” Plea, non assumpsit, and issue. The jury found a special verdict, which stated, “that in the year 1775, John Madison, sen’r was Clerk of Augusta Court, and that John Madison, jun. was his deputy. That on or about that time, Thomas Stuart had two suits depending in the said Court, against Samuel and Joseph Love, for debt. That in or about the month of August, 1775, one of the defendants came into the Clerk’s office and paid to John Madison, jun. the deputy of the said John Madison, sen. the then amount of the said debt, with interest and costs, being 241. 11s. 8d. and that the said suits were afterwards discontinued in 1779.” The verdict then proceeded thus: “We find that on the 27th day of March, 1781, a letter from John Madison, jun. to Thomas Stuart, in these words, Sir, I intended to call on you; I shall be in the last week in May, or the first week in June, when I shall be able to pay you the^ money I received of yours of Samuel Love, with the depreciation of it since that time with interest. I am, Sir, your humb. serv’t.
    John Madison, jun. If the law upon 482 the whole '^matter is with the plaintiff, we assess his damages to thirty-nine pounds twelve shillings and eight pence. If for the defendant, we find for the defendant.” The County Court gave judgment for the. plaintiff, for the verdict and costs. The District Court of Botetourt reversed that judgment, and from the judgment of reversal, Stuart appealed to this Court.
    
      
      The principal case is cited and approved in State v. Enslow, 41 W. Va. 747, 24 S. E. Rep. 680.
    
   PENDLETON, President.

After stating the case, delivered the resolution of the Court as follows:

That a Clerk and every other officer is answerable for all official acts of his deputy, cannot be doubted; and if the Clerk had been authorised to receive' this money at his office, the receipt of his deputy would have bound him.

But, since no law permits a debtor sued, to pay his debt to the Clerk, without the intervention of the Court; if the payment had been to the Clerk himself, though he would have been personally answerable, he would not have been liable officially, so as to charge the securities for his office.

It was a personal trust to receive and pay it over: and he alone was answerable for the breach.

The judgment of the District Court is, therefore, right, and must be affirmed.

Judgment affirmed.  