#### THE STATE, UPON THE RELATION OF A. H. SAUNDERS, TRUSTEE, &c. *vs.*JAMES L. GAINES & AL.

A clerk and master, who sells land under an order of a Court of Equity for the purpose of partition, acts under such order as an officer of tha Court, and is liable on his official bond for any breach of duty, in not complying with the orders of the Court in relation thereto.

Therefore, where a clerk and master sold land under such an order, received the proceeds, and was directed by the Court to pay over to the persons properly entitled by law, and the heirs did not make their claim within three years ; *held,*that he tvas bound to pay the same, under the provisions of the first section of the seventy-sixth chapter of the Revised Statutes to tha Trustee of the County, of whose Court he was clerk and master, and that, for a default in doing so, he and hits sureties might be sued on iris official bond.

*Held,*however, that where the Court had not directed the disposition of the money, received on such sale, though it had remained in his office for three years, he was not liable to the County Trustee.

The ease of *Tha Judges*v. *Deans,*3 Hawks 138, cited and approved.

Appeal from the Superior Court of Law of Montgomery County, at the Spring Term, 1847, his Honor, Judge Battle, presiding.

A petition was filed in the Court of Equity for Montgomery County, of which the defendant was Clerk and Master, to sell land, for the purpose of partition. The defendant was appointed a commissioner to make the sale, and he accordingly made the sale, and returned,his report to Court. The last order made in the case was as follows: “Report of sale filed and confirmed and ordered that the Clerk and Master of this Court, proceed to the collection of the purchase money, that he make title to the purchaser, and that he proceed, on the collection of said purchase money, to pay it over to those entitled to *169receive the same.” It is admitted that under this order the Clerk and Master, has in his hands the sum of $100, and has had it more than three years. It is further admitted by the defendant, that he has in his hands another sum of ten dollars, which he has had more than three years, arising also from the sale of lands made by him as commissioner, upon a petition for that purpose, in which no final decree has been made, and which he retains under an interlocutory order, made in the case, and that no one has applied for either sum, under the decrees. The relator, as Trustee of Montgomery County, demanded these two sums of money from the defendant, which he refused to pay. The action is brought in debt, on the official bond of the defendant, and the breach assigned, the refusal to pay. The pleas are conditions performed and not broken.

The first section of the 76th chapter of the Revised Statutes, makes it the duty of the Clerks of the County, Superior and Supreme Courts, and every Clerk and Master, at the first Court of which he is Clerk, which shall be held after the first day of August in each year, to produce to the Court a statement of all monies, remaining in his hands, which were received by him officially three years or more, previousyl thereto.

The second section directs, that these balances shall be paid over to the officers appointed to receive and disburse the County funds; and, by the third section, the Clerk, failing to make the required payment, is, together with a penalty, rendered liable to pay such monies as he may be chargeable with, under the provisions of the Act. On the part of the defendant, it is alleged he is not liable under this Act, because he did not receive the money as' Clerk and Master, but as the commissioner of the Court. Upon the case, as agreed between the parties, the Court below was of opinion, and so gave judgment, that the de* fendant was liable upon his official bond for the one hun*170dred dollars, mentioned in the case ; but not for the ten dollars.

From this judgment both parties appealed.

No counsel for the plaintiff-.

*Strange,*for the defendants.

Nash, J.

We concur with his Honor on both points. The question now presented, was before the Court in the case of the *Judges*v. *Deans, 2*Hawks 132. That was an action of debt, brought against the defendant as one of the sureties to the official bond of Howell Jones, who was the Clerk and Master of Hertford County. A decree had been obtained under a bill for the sale of land, and the Clerk and Master was appointed to make it; a sale was made and the report confirmed, and an order made, that the Clerk and^Master should pay over to the complainants tho bonds taken at the sale ; and for a breach of this order, the action was brought. On behalf of the defendant, it was contended, there as here, that the act complained of, was not a breach of his official duty ; that the Clerk had received the bonds, not as Clerk but as a commissioner ; as an individual selecto d by the Court, for the performace of a certain act. The defence was not sustained by the Court; it was decided, that, in every part of the business, the Clerk acted officially, and more particularly as to that part of the decree, which required he should pay over the bonds, &c., for the reason that his office was the proper place for their deposit. In *this case,*the order of the Court is, “ that the Clerk and Master of *¿Ms*Court, proceed to the collection of the purchase money, that *he*make title to the purchasers, and that *he*proceed on the collection of the purchase money, to pay it over to those entitled to receive the same.” Throughout this order the Court speak to their own officer, as Clerk and Master, and not as Commissioner. As Clerk and Master, and he is to make title, receive the purchase money, *171make distribution. It is impossible to conceive duties more official, than those to be performed under this order. In not paying over to the relator the one hundred dollars, on his demand, the Clerk was guilty of a breach of his bond. He was, by the decree, directed to pay the money to the parties, who were entitled. It had been in his hands, as Clerk and Master, three years, without any one appearing to claim it, and, under the Act referredto, the relator was entitled to have it delivered to him.

We see no error in the judgment of the Court as to the Ten Dollars, It was not sufficient to enable the plaintiff to recover, that it should appear the money had remained in the office three years, and that the defendant had refused to pay it; but it must further appear, that it was money payable to some particular person. These are the words of the Act. The case states that it was retained by the Clerk and Master under an interlocutory order of the Court. What that interlocutory order was, we are not informed ; it may have been one requiring the Clerk to retain it until the further order of the Court, to enable the Court, for instance, by a proper enquiry, to ascertain to whom it belonged. In such a case, the refusal to pay it to the relator would not be a breach of his bond ; the ac' tion of the Court upon it was notfinal. We cannot, in this case, in relation to that money, see that the defendant has been guilty of any breach of his official bond.

Per Curiam. Judgment affirmed.