
    MATILDA BROUGHTON and others v. E. G. HAYWOOD and others.
    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 soj 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 Pcmon, O. 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 tbe 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. E. 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.
    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; Lilis v. Long, 8 Ire., 573; State v. Long, 8 Ire., 415; States. Broum, 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, Leiois, 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.

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. Golor in law means not the thing itself, but only an appearance thereof; as, color of title means only the appearance of title. In the pase 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 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, enrol, 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 -prej udicial 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 oí 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 Gen. Sickles, No. 10, s. 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 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 the 19th 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, I860,) 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.

Pearson, C. J.

I concur in the conclusion that the [defendants are liable to judgment tor 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 but 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 he put the .prpperi 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 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 bidding all who were not prepared with thejmoney; 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 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 Mm 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.  