
    
      The Treasurer vs. John M. DeSaussure, administrator of Bineham.
    
    1. Where an action of debt was brought on the official bond of an Ordinary, against the administrator of one of his securities, in the name of the Commissioners of Public Buildings, for the purpose of recovering certain sums of money paid out by them for recording papers in the office of the Ordinary, left unrecorded by him, and which arose during his term of office, it was held that it was the official duty of the Ordinary to have recorded, not only all such papers aiipertaimng to his office, as he was expressly required to record by any Act of the Legislature of force whilst he was in office, but all such other papers as by the fee bills he is allowed a compensation for recording, and his omission to do so, was a breach of his official bond. Also held that an action could be maintained by the Commissioners of Public Buildings, on the official bond of the Ordinary, for money expended by them, in pursuance of the Act of 1837, (6 Stat. 577,) in having recorded such papers as it was his duty to have recorded.
    2. The Treasurers vs. Ross, 4 McCord, 273, considered and distinguished from this case.
    3. As a general principle, it seems the official bond of any officer may be sued and damages recovered, for injury to an individual, arising from official default, without any special Act to that effect.
    
      Before Evans, J. at Kershaw, October Term, 1842.
    This was an action of debt, on the official bond of David Schrock, as Ordinary of Kershaw district, against the administrator of Benjamin Bineham, who was one of the securities on that bond, to recover, in the name of the Commissioners of Public Buildings of Kershaw district, certain sums of money paid out by them for recording papers in the Ordinary’s office, left unrecorded by Schrock, and which arose during his term of office.
    A special verdict was taken, as follows :
    
      Special Verdict.
    
    We find the bond declared on, to be the act and deed of Benjamin Bineham, deceased. We find that David Schrock was Ordinary of Kershaw district for four years next succeeding the date of the said bond, to wit, the 13th November, A. D. 1823. We further find, that as such Ordinary, he left unrecorded papers of the character set forth in the schedule hereto annexed, which said papers the Commissioners of Public Buildings of Kershaw district, in pursuance of the Act of the Legislature of 1837, and the orders of the Court of Common Pleas for said district, founded on the report of the Solicitor of the Northern Circuit, caused to be recorded ; and that the said Commissioners paid therefor, the sum of $339 43.
    If the court should be of opinion that the Commissioners of Public Buildings of Kershaw district, have a right to recover the said sum of $339 43 cents, then we find for the plaintiffs the said sum. If the court should be of opinion that the commissioners of Public Buildings cannot sustain their action, then we find for the defendant.
    
      Schedule.
    
    Citations. Administrator’s oath. Executor’s oath'. Letters of Administration. Letters Testamentary. Administrator’s Bonds. Warrants of Appraisement. Appraiser’s Oath. Inventory and Appraisement. Petition and order for sale of Personal Property. Sales of Personal Property. Mortgage of Personal Property. Bonds for purchase of same. Executor’s and Administrator’s Accounts. Wills. Partition under Wills. Discharges and Receipts in full, on settlement of estates. Final settlements. Statement of Accounts. Release of sureties to Administrator’s Bonds. Marriage Contracts. Petition for Guardianship. Guardian’s Bonds. Orders for Administrators to account.
    Partition of real estate, under the A. A. 1824.
    Petition and order for sale and division of Real Estate. Sales of same. Purchaser’s Bond. 39 pages, 48 lines to a page, 15 words to each line, at 7 cents per 90 words. 28,080 words, equal to 312 pages of 90 words each, which is equal to $21 84, at 7 cents.
    
      Judgment of the presiding Judge.
    
    The condition of the bond in this case is, that Schrock should well and truly and faithfully discharge and perform the duties of the office of Judge of 1he Court of Ordinary, for the district of Kershaw. On considering the matters set out in the special verdict, I am of opinion, that the neglect of the Tdinary to record such papers as by law he is required to record, was a breach of the condition of his bond; and as this work has been performed by the commissioners of public buildings, by virtue of, and in pursuance of, an Act of the Legislature, they have a right to sue Schrock’s securities, to recover back the money thus expended. The difficulty of the case is to ascertain what papers he was bound to record ; for if, as it seems to me, other papers have been recorded than such as it was the duty of Schrock to record, there can be no recovery for these. The papers which by law he was required to record, are of two classes. 1. Such ás are required to be recorded expressly by the direction of Acts of the Legislature. 2d. Such as are not expressly required to be recorded, but it seems to be understood in the various fee bills, to have been the duty of the Ordinary to record.
    To the first class, belong the proceedings in the Court of Ordinary, under the Act of 1824, on the partition and sale of real estate. The default in this particular amounts, according to the schedule accompanying the special verdict, to the sum of twenty-one dollars eighty-four cents-.
    In looking through the Acts of the Legislature, I do not find any Act prior to the Act of 1839, which expressly makes it the duty of the Ordinary to record any papers, other than those above mentioned; but that it was his duty, I think, results necessarily from the legislation, from time to time, had on this subject. Before the revolution, the duties of the Ordinary were performed by the Governor, and all the papers were filed and kept by the Secretary. By the constitution of 1776, one Ordinary was appointed for the State, and afterwards, one was appointed for each of the circuit court districts then existing.
    In 1785, the duties of the Ordinary were vested in the county courts, where they were established, and they continued until the present system was adopted in 1798. In all the fee bills established during all this time, there are to be found fees allowed for recording certain papers. I presume, when the court was first established, its duties were such as belonged to the Ecclesiastical Courts of England, and that the practice of that court was introduced on the first settlement of the province, into the court exercising here the same jurisdiction. Hence we find that fees were allowed for recording to the Secretary, to the county court Clerk, and to the Ordinary. Seeming from hence to imply, that it was the duty of those officers to record certain papers relating to the office of Ordinary. For these reasons, I am of opinion, it was the duty of Schrock to record the papers for which by law he was allowed fees, and the omission to do so, is a breach of his official bond. Those papers are enumerated in the several Acts on the subject, but more particularly in the fee bill of 1791, which is as follows, viz: For citation and recording, 2 shillings and 6 pence. For qualifying administrator’s bond, «fee. recording letters, and oath, 14 shillings; for proving will, probate, recording and filing will, «fee.; for qualifying executors, letters testamentary and recording, 5 shillings ; for warrant of appraisement, oath and recording, 5 shillings ; for filing renunciation of executors and recording, 2 shillings; for guardianship bond, letters and recording, 14 shillings.
    There are various other fees allowed to the Ordinary, in relation to transactions in his office, but as the papers relating to these are not required to be recorded, I do not think the defendant is liable for them. As it appears from the schedule annexed to the verdict, that many other papers than those enumerated above, have been recorded and included in the sum found by the jury, the verdict must be set aside, and a venire de novo issued, to ascertain the amount due by the defendant for recording the above described papers, and such others as it was the duty of the Ordinary to record.
    The defendant moved the Court of appeals to set aside the judgment rendered on the special verdict in this case, and for leave to enter judgment thereon for the defendant, on the following grounds:
    1. Because neither the State, nor any one authorized by the State, can maintain an action against an Ordinary, on his official bond, for neglecting to record papers of his office.
    2. Because there is no law requiring the Ordinary to record any paper in his office, except partition of real estate, under A. A. 1824, and the affidavit of a lost will.
    3. Because simply fixing an amount to be paid to the Ordinary, for recording papers, when he did so, did not make it his duty to record them. It was left to his option.
    
      J M. DeSaussure, for the motion,
    cited 4 McC. 273; A. A. 1837, 6 Stat. 577 ; 6 lb, 250; 4 lb. 429.
    
      Caldwell, Solicitor, contra.
   Curia, per

Evans, J.

The questions necessary to be considered in this case, are, 1st. Was it the duty of Schrock, the Ordinary, to record all or any part of the papers, for the recording of which this action is brought'? 2d. Will an action lie on his official bond, to reimburse the commissioners of public buildings for money expended in recording the papers in his office, which it was his duty to record'?

1st. The condition of his bond was, that Schrock would well and truly and faithfully discharge and perform the duties of the office of Judge of the Court of Ordinary, for the district of Kershaw. Before the Act of 1839, there was-no Act of the Legislature specifying what particular papers in the Ordinary’s office should be recorded. This branch of the jurisdiction of the Spiritual Court, at a very early period of our colonial history, was exercised by the Governor, and with the jurisdiction, the usages of the Spiritual court were no doubt introduced. What was the practice of the Spiritual court in England, in relation to the recording of papers, we have now no means of ascertaining; but in the fee bills which have been passed from the earliest times, down to the last legislation on the subject, fees are allowed for recording certain papers. By the County Court Act of 1785, 7 Stat. 211, the jurisdiction now exercised by the Ordinary, was transferred to the county court; and by the 23d sec. of that Act, the clerks are required “to provide and keep, at their own expense, all necessary record books for the proceedings oí the county courts, and shall make a fair record of such proceedings, together with such other papers appointed by law to be by them recorded.” In the 24th sec. it is enacted that the clerks of the county courts shall be entitled to take and receive the several fees herein to be allowed them by the table of fees, for the several services therein mentioned to be performed by them. By these clauses, it seems to me, the clerk was required, 1st. To keep other books than the mere journals of the court, in which he was to record such other papers as were required by law to be recorded. 2d. That he was entitled to receive fees for recording certain papers appertaining to the court of ordinary ; and 3d. That the services for which the fees were allowed, were to be done and performed by him. On the abolition of the county courts, the jurisdiction was transferred to an officer called the Ordinary, who was both judge and clerk, and bound to do every thing which before was required of the clerk of the county court. That it has been the understanding of the Legislative department of the government, that it was the duty of the Ordinary to record such papers as the fee bills allowed him compensation for, I think there is little doubt. This, I think, is fully sustained by the fact, that where new duties have been required of him, recording is specially provided for, as in the case of a sale, or partition, under the Act of 1824, and where he himself qualifies as executor before one of the Judges of the court of Common Pleas. Nor is it any answer to say, that he is required to record an affidavit of a lost will, without any specific allowance for doing so. By the Act of 1791, he is allowed for recording, or copying any other writing, per copy sheet. 1 am, therefore, of opinion, that it was the official duty of Schrock, as Ordinary, to have recorded all such papers, appertaining to his office, ás he is expressly required to record by any Act of the Legislature of force whilst he was in office, and all such other papers as by the fee bills he is allowed a compensation for recording; and his omission to do so ■was a breach of his official bond.

2d. Can the present action be maintained for this breach of the bond 1 The special verdict finds that certain papers, of which a schedule is annexed to the verdict, were left unrecorded by Schrock, and that the commissioners of public buildings had caused them to be recorded in pursuance of the Act of 1837.

The object of this action, is to be reimbursed the money thus expended. If it was not for what is said in the case of the Treasurer vs. Ross, 4 McC. 273, I should say there could be no doubt upon the subject. Every man in the State is to some extent interested in putting the papers in the Ordinary’s office in a more durable form than loose sheets of paper ; to carry into effect this public policy, the Ordinary is required to record certain papers, and is paid for so doing. He neglects to do it, and the Legislature made it the duty of the commissioners of public buildings to have it done and paid for out of their own funds. The case of the Treasurer vs. Ross, was under the following circumstances: Allison had been clerk of the court for York district, and had neglected to record sundry judgments. Moore was his successor, and was authorized by a resolution of the Legislature, to sue on Allison’s official bond, to recover the amount of fees due for recording the judgments by Moore, provided it should be at his expense and responsibility.

Waties, J. on the circuit, non-suited the plaintiff, on the ground that, as “the State could maintain no action on the bond for a breach which had been repaired, the plaintiff could not.” It is plainly to be gathered from the case, as reported, that Moore had voluntarily recorded the judgments, and that the Legislature had only authorised him to sue on the bond, at his own expense and responsibility, and recover, if by law he could, for these voluntary services. In this view, the case was, no doubt, decided correctly ; but that case was very different from the present, where the recording has been done, not voluntarily, but by the command of the law. I admit that Judge Nott, in affirming the circuit decision, does express the opinion, that in relation to the bond of a clerk, the object of the bond was to indemnify all such persons as may sustain any damage by the mal-practice of the clerk, and not as an indemnity to the State. This opinion he seems .to deduce from the Act of 1789, 5 Stat. 106, which requires the clerk to give a bond with security, for the faithful performance of his duties, and declares that the clerk, with his securities, shall be liable to all damages sustained by any person or persons, in consequence of the mal-practice committed by such clerk. As a general principle, it seems to me, the official bond of any officer may be sued, and damages recovered, for injury to an individual arising from official default, without any special Act to that effect; and the insertion of such a provision in the law, in relation to the clerk, will neither add to nor diminish the liability.

The question in this case is, whether, in consequence of Schrock’s official defalcation, the commissioners of public buildings, in the discharge of their duties, according to law, have been compelled to expend money to have that done which it was his duty to have performed; and if so, whether they cannot recover it on his official bond. This court is of opinion, that they can recover for recording all papers which it was the duty of Schrock to record. But as many papers have been recorded which, so far as I can see, were not required to be recorded before the Act of 1839, and for which, consequently, the security of Schrock is not liable, and which are embraced in the verdict, the decision of the circuit court, ordering a venire facias de novo, is affirmed, and the motion for leave to enter up judgment on the special verdict for the defendant is dismissed.

Richardson, O’Neall, Butler and Wardlaw, JJ. concurred.  