#### Frances Polock et al. *vs.*Theodore S. Dubose, Executor, et al.

Bill against the executor of a deceased Commissioner in equity, foi’ negligence in taking insufficient security to a bond, and in not taking prompt measures to collect it by suit, dismissed upon the evidence — no negligence being shown.

BEFORE DUNKIN', OH., AT RICHLAND, JUNE, 1854

Dunkin, Ch. Levi Polock died intestate in 1848 — his heirs and distributees were, his widow, Frances Polock, and ten children, six of whom were of age. One of the daughters had intermarried with Lewis Levy, who administered upon the estate. Another daughter was the wife of Benjaman Mordecai, and all were at one time residents of Columbia.

On the 17th July, 1850, proceedings weré instituted in this Court by Frances Polock and her son, David J. Polock, against Benjaman Mordecai and wife, and the other distributees and the administrator for a settlement and partition of the estate. The answers were filed on the same day exhibiting some conflicting claims.

On the next day (18th July,) after hearing the Oommissioner’s report, an order was made that the real estate and the slaves of the intestate should be sold on first Monday of October, or some subsequent sale-day, on terms therein prescribed by the Commissioner of this Court — that the cash-part of the sales of the negroes should be paid over to the administrator, to be applied by him: and the *“*cash part of the purchase of the real estate should be *invested*by the Commissioner *in well secured londs,*which, together with the residue of the purchase money of both real and personal estate, should abide the further order of the Court, all equities being reserved.”

*21In obedience to this order, sales were made by tbe late August H. Porcber, then Commissioner of this Court, on sale day in November, 1850. The cash part of the sales of the real estate rather exceeded nine thousand dollars. The amount was invested in various bonds, payable with interest on demand.

On 4th June, 1851, the Commissioner reported to the Court his transactions under the order of sale, and also in his general annual report of estates in his hands, he set forth as belonging to the estate of Levi Polock, deceased, the several bonds with the sureties thereunto which he had taken as investments of the cash part of the proceeds of the real estate. Chancellor Largan made the usual order, that the annual report should be filed for the information of the parties. But on 21st June, 1851, he made a special order in the case, commencing, that “ upon hearing the bill, answers, and reports of the Commissioner, it is ordered and decreed that the report of the sales of the estate, real and personal, of Levi Polock, be confirmed.” Other matters are contained in that decretal order not necessary to be repeated.

But this order is specially noticed and made the basis of the future and final decretal order, made by Chancellor Johnston on 16th October, 1851. It is as follows (after stating the case) “the Commissioner having reported the amount of the balance of the estate of Levy Polock in his hands *in bonds*and the same having been confirmed by the Court: It is ordered, upon motion of Mr. De Saussure, and by consent of the parties, that the Commissioner pay to the parties, complainant and defendants the widow and children of the intestate, their respective shares of the said bonds in the Commissioner’s hands, in the proportions set forth in his report made June 4,1851, and confirmed by the decree of the Court dated 21st June, 1851.” The rest of the decretal order is irrelevant to this matter.

Among the bonds in which the Commissioner had invested the nine thousand three hundred dollars, (being the cash portion *22of tbe sales of the real estate, was the bond of William B. Carlisle for two thousand dollars, with William Carlisle and John Lewis as sureties. When the parties came to a settlement, and to receive their share of the bonds in the Commissioner’s hands, “some of the heirs (says the witness Mr. Levin) objected to receive this bond of Carlisle. After the settlement, this bond, says he, was left in the Commissioner’s office.”

It may be here remarked that this bond was taken on 8th November, 1850, (four days after the sale.) Several of the heirs were borrowers of part of the same fund.

It is difficult to suppose that they were not aware of this loan about the time or at any rate, very soon after it was made; certainly all were apprised of it when the Commissioner made his reports in June, 1851. Yet there is no evidence of any remonstrance, of any notice, of any objection whatever, until the Fall of 1851, when the report of sales was confirmed. When the report of investments was placed on file for the notice and information of the parties, it was due to a proper regard for their own interest that parties should have set on foot measures for calling in any securities which they supposed doubtful. But from that day to this the parties have applied for no order to further the collection of the debt. It is true, that the late Commissioner, when apprised of their dissatisfaction, did of his own motion, cause proceedings to be instituted which as to one of the sureties would probably have proved successful but for the lamented death of the Commissioner, which abated the suit on the 15th May, 1852.

A. H. Poreher had resigned his office in consequence of ill health ab,put a month previous to his death, when the present Commissioner .was appointed, and this bond with his other official papers was turned over to him by his predecessor. On the 8th May, 1854, these proceedings were instituted by the plaintiffs against the present representative of the late Commissioner, and the sureties on his official bond, praying that the executor of A. H. Poreher may be decreed to pay to the *23“Plaintiffs tbe sum which shall appear to be due to them by reason of the *official*negligence of his testator in taking insufficient security to the said bond of investment (W. E. Car-lisle’s) and in failing to collect the same.”

The order requiring the Commissioner to invest the fund in “well secured bonds,” it "was his duty to make the investment with all proper dispatch in order to realize interest for the parties. The mode of investment was prescribed, to wit: in bonds, well secured. In the discharge of his duty no other rule can well be adopted than that the officer should exercise the same care, diligence and caution, which a prudent man would employ in the management of his own funds. Perhaps there is this difference, that the officer, being required to make an investment, acts not only under the pressure of official duty, but it may be, is stimulated by the impatience of the parties interested. The money was to be repaid on demand. In other words, it was what is termed “ a loan upon call,” and it seems to have been well understood that it was at the usual rate of interest. In commercial communities it is believed that such investments are not easily made on satisfactory security. Mr. Crawford testified that in October and November, 1850, the Banks in Columbia were discounting freely. So far as the Court can judge from the papers, a part of this fund of nine thousand three hundred dollars was invested on the day of sale (4th November); a part on the 6th: the loan to Carlisle on the 8th; but the balance to Scott & Ewart was not invested until 28th November.

The charge of the plaintiffs is that the loan to William B. Carlisle was on such insufficient security as rendered this act of the Commissioner an official defalcation.

One of the leading witnesses of the plaintiff’s was *W. W.*Walker, a person of intelligence and respectability, and who had an opportunity of intimate acquaintance, with some o^ the matters to which he testifies. The bond was conditioned for the payment of two thousand dollars, with interest, and was *24executed by 'William B. Carlisle, with William Carlisle and John Lewis as sureties. Mr. Walker says that in 1850 William B. Carlisle became part proprietor of the Telegraph newspaper —that the contract was not to be completed until he paid the money, and that the two thousand dollars borrowed from Porcher was obtained for that specific purpose, and was so applied. That Carlisle was a young man of ability though irregular, but that he was at that time neither intemperate nor dissipated in his habits; that in November, 1850, the Telegraph had a good deal of reputation, and was conducted with ability; that he knew of no lien upon the Telegraph property in November, 1850: he knew of no other property that William B. Carlisle had; witness lived next door to the Telegraph office; the paper was conducted with ability, but miserably managed financially, and to that he attributed the failure of the establishment, which took place, as he thinks, in the Summer of 1851.

The first surety on the bond was William Carlisle. He is the father of William B. Carlisle; and he testified that the two thousand dollars was borrowed to take up a note in the Branch Bank which William B. Carlisle had given to pay for one-third of the Telegraph, and that the note was taken up with this money. The witness in November, 1850, resided in Kershaw District near the Eairfield line. He was then the proprietor of the place on which he resided and of negroes which have been since sold by the Commissioner in Equity for six thousand five hundred dollars; that his indebtedness in all did not exceed two thousand five hundred dollars; that he never recollects to have been refused credit, nor was there ever an execution against him until here recently; that he did his transactions chiefly in Camden and Columbia; that since 1840, W. E. Johnson, J. M. De Saussure, Henry Clarke, Bickard Cathcart, and others, have indorsed for him; but that he has never applied for indorse-ments since 1851 (when it seems some family difficulties arose); he says that he stated to Porcher the number of negroes he *25had in possession (nine) of more than ordinary value; that he had mortgaged a part of them to carry a son through College, but that the mortgage was paid, (which the Court understood to be so,) and that there was no other incumbrance.

Ur. *Henry*Clarice, a resident of Fairfield, was examined by commission. He stated that he had known William Carlisle from his (witness’s) childhood; that in November 1850he lived six or seven miles from him; that Carlisle had at that time a plantation on which he resided containing from three to five hundred acres, about nine or ten negroes, and the usual quantity of farming utensils, and stock, &c.; that it was the impression of the witness, and was the general impression that he was the owner of the property, and that on the faith of this he obtained credit from the witness and others as indorsers. Among those who'indorsed for him on the faith of his ownership of this property were A. D. Jones, Sr., John Cunningham, and John Harrison, Sr.; that the witness never heard any doubt expressed about his title to the property until the Fall of 1851; that it struck everyone with surprise; witness would in November, 1850, have considered William Carlisle responsible for three or four times the amount of this bond. In reply to a cross-interrogatory, he says, that the solvency of William Car-lisle will depend upon a suit in Equity now pending, in reference to the property which he claims as hjs own.

*R. JE. JEllison,*Sheriff of Fairfield District, said that he knew William Carlisle in November, 1850; that he was in possession of property, and that the witness “would have considered his name good for two thousand dollars, and would have taken his name on a bond for that amount.”

*James B. M’ Cants,*Esq., testifies that he had known William* Carlisle for the last fifteen years; that until the Fall of 1851 he had never heard his solvency questioned; that he held land *26and negroes in bis possession of which he was the ostensible owner, and on the faith of which Dr. H. H. Clark and others indorsed his paper; he says that from appearances exhibited, and his never having heard his solvency questioned, he would have considered him responsible for two thousand dollars in November, 1850, if the witness from his knowledge of the records of the Court of Equity had not known that the negroes had been settled upon his wife and children. He further testified that in the Pall of 1851, a separation took place between William Carlisle and his wife; she and her children left him and took away the negroes; *“*at that time his credit was talked of and suspected and since then he has been considered insolvent.”

*Samuel G-. Barhly*testified, that in 1850, William Carlisle had property in possession, which witness thought belonged to him, and so far as he knew was not involved; he was educating and supporting his family decently and genteelly.

*D. McDowell, Esq.,*said that in 1850 William Carlisle had property in his possession, “ and had the reputation of being solvent.”

J. *Z. Hammond, Esq.,*testified that in 1850 William Car-lisle had a tract of land and some slaves in possession; resided in Kershaw, about Long Town; that he never suspected his solvency till his difficulty with his family, and until that time never heard his title to the property questioned, and would have considered him good for two thousand dollars.

Such is the current of the evidence as to the reputed solvency and pecuniary responsibility of William Carlisle, in November, 1850, in Fairfield and Kershaw. It is believed that the only witness residing in Fairfield or Kershaw, who differs upon this point is *A. Laughlin,*who was at one time Clerk of Fair-field. But the plaintiffs examined J. A. Crawford, the highly *27respected President of tbe Commercial Bank, in Columbia. The result of his testimony is certainly no impeachment of the conduct of the late Commissioner. Mr. Crawford, with large financial experience, abundant means of information, cautious and scrutinizing, wanted confidence in William Carlisle as early as 1846; *“*he thought he had more credit than he was entitled to; always had good indorsers, &c.” About this time witness examined into his affairs; witness was opposed to his getting accommodation; he borrowed money to educate his children, &c.; yet he says that he applied for a loan in 1850; that the witness opposed the loan; never had any confidence in him, but that he was overruled by *the Board of Directors.*This was a loan of one thousand dollars, on a note indorsed by the late John Cunningham and Perry.

*L. T.*Levin, was a writer in the office of the late Commissioner; had kept the books of the Telegraph office. He said “ that the general impression in 1850 was that his (W. Car-lisle’s) reputation as a solvent man was bad.”

*W. T.*Brown, testified that in 1850 he (the witness) resided in Chester District. He speaks much of the condition of W. Carlisle, but he concludes by saying that Laughlin was the only person he ever heard speak of the property in W. Car-lisle’s possession belonging to his wife and children; that “ there was no general reputation here (in Columbia,) as to Carlisle's solvency in 1850 to witness’ knowledge; don’t know that ‘he ever heard any person speak of William Carlisle’s solvency in 1850.”

*T. P. Walker;*witness was a young man who some time in 1850 was also book-keeper in telegraph office, and testified against the general reputation of W. Carlisle for solvency in 1850, but neither he nor the other witness *J. B.*Bwart, appear to have had any particular means of information; on the other *28band *James Oatheart*was examined at the hearing. He said he had been transacting business in Columbia for twenty-seven years ; during half that time he was also doing business in Fair-field District; he had been a bank director for the last twenty-four years; he had known William Carlisle since 1819, and never heard his solvency questioned till 1851; up to that time witness would cheerfully have credited him for any reasonable amount; hiS name was frequently before the board at which witness was a director, and passed freely on witness' representation. Witness always inquired particularly about borrowers, and he never heard any question abo-ut the solvency of William Carlisle. On cross-examination said he never heard of any question about the negroes until to-day.

*H. Cf. Wilson,*said he had known William Carlisle for twenty years; knew him in Fairfield in 1832; never heard his solvency questioned till 1852 ; -his credit was very good; he traded in Camden, where witness lived; witness now lives in Alabama.

*R. S. Morrison,*is a merchant of Columbia; has known William Carlisle for some twelve years; some connexion; witness never heard William Carlisle’s solvency questioned till here recently; in 1850 he had heard nothing to induce doubt of his solvency.

The irresistible deduction from the whole evidence is, that in November, 1850, William Carlisle was generally regarded as entirely responsible for the amount of this bond; he was the ostensible owner of a respectable estate, and enjoyed the confidence of many intelligent, wealthy and cautious individuals, who evinced the sincerity of their convictions by acts of unequivocal significance. According to the clear preponderance of the evidence, no question of his responsibility was ever suggested, or had any currency, until the unhappy breach in his family in the fall of 1851, twelve months, or nearly so, after *29tbe loan bad been contracted, at a time when John Cunningham, A. D. Jones, John Harrison, II. H. Clarke, not to mention W. E. Johnson and J. M. De Saussure, were willing to become his friendly endorsers, and James Cathcart to recommend his name to the confidence of his board. When the Sheriff of Fairfield District would have been willing to take his bond for two thousand dollars, how can it be affirmed that the Commissioner violated his duty, was wanting in the care and diligence which prudent men exercise in the management of their funds, when he received William Carlisle as a security on the bond in question.? If the defendant’s case stopped here the Court would have great difficulty in declaring the Commissioner guilty of a negligent execution of the order of investment. No law required him to demand more than one good surety, nor is the Court aware of. any established usage to that effect. But the late Commissioner took another surety, and all the witnesses examined upon the subject seem to vie with each other in testifying to the unquestionable sufficiency of John Lewis “His name was as good as any man’s name.” “His responsibility undoubted for ten thousand dollars.” Such an investment “ first rate,” &c., and in conclusion that he is worth at this time twice as much as when the bond was taken, in November, 1850, (see Leitner’e evidence.) No one pretends todoubt his pecuniary ability *now*or *then.*But it is said that Mr. Lewis, who was a planter in Fairfield District, at that time contemplated a removal to Florida, and that he did actually remove in January, 1851, and now resides there. A deed of conveyance of a plantation from him to J. P. Mobley, was put in evidence, bearing date 5th November, 1850, and recorded 13th January, 1851. There is no evidence that A. H. Porcher had any knowledge or suspicion of such intended removal, if it then existed. *William, Carlisle*says that at that time John Lewis had no intention of leaving the State, but that he wished to sell the plantation which he then owned, and purchase other lands. That when he sold in the fall of 1850 he intended to *30rent other land; that after be signed this bond he went to Chester to buy land, but he did not succeed. In the Christmas holidays of 1850 he tried to rent a place, but failed; that he then determined to go to Florida, and in a week he started. This was the latter part of December, 1850.

But it was intimated that, although the security of the bond was abundant at the time it was received, yet some negligence was attributable to the late Commissioner for not collecting it. The bond was not payable on any fixed day. It was intended as an investment until the right to the fund could be determined. During the whole of the winter and spring df 1851, no reasonable doubt could be entertained of the sufficiency of the bgnd. The telegraph was conducted with ability, and was in popular favor. William Carlisle’s domestic troubles and consequent pecuniary embarrassments did not fall upon him till the summer of 1851. It seems that about that time Por-cher informed him that he would be obliged to bring suit, as he was notified that the security was insufficient. W. Carlisle says he then tried to get other securities, but the rumpus in his family had taken place — his title to the negroes was disputed, and he was unsuccessful in his efforts to get other security. In September, 1851, the late Commissioner placed the bond in the hands of Messrs. Moore & Arthur, who obtained judgment against William B. Carlisle, in Richland, and the Messrs. Gregg sued William Carlisle, in Fairfield, and recovered judgment, but in November, 1851, he had confessed a previous judgment to secure his indorsers. In the fall of the same year, Poreher hearing that John Lewis was in the State on a visit, caused him to be arrested by a bail writ *on 28th*October, 1851; he gave bail and the suit was on the docket of the Common Pleas for Fairfield District, when it became abafed by the death of the plaintiff, in May, 1852. It appears to the Court that the charge of negligence in collecting the bond has as little foundation as that of want of diligence or caution in making the investment. It was said in the argument that he should have *31applied for an order in June, 1851. Why did not tbe parties themselves apply for an order ? and why have they never yet applied for any order for the collection of the bond? But what order could A. II. Porcher have obtained in June, 1851, which would have been more effectual than the prompt and decisive measures which he adopted without any order ?

Finally, it is suggested that John Lewis may have some defence to the bond, as James H. Carlisle, a brother of William B. Carlisle, did not also sign as co-surety. It is not intimated that John Lewis entered into the contract upon any such condition. On the contrary the evidence is that he came down from Fairfield for the purpose of completing the arrangement; he was in the commissioner’s office; Porcher would not let William B. Carlisle have the money till the bond was executed; the bond was all prepared but no witness was present; Lewis went himself for the witness ; the bond was executed and the money paid on the spot to William B. Carlisle. But the only’ foundation for the suggestion is that William Carlisle, (who had negotiated the matter,) had told Porcher that James H. Carlisle should also sign the bond, and he says he thought he would have done so, as the money was to take up a note in bank on which James H. Carlisle was indorser. But it seems that when James H. Carlisle was afterwards applied to, he declined. A. H. Porcher was indignant at what he may well have regarded a breach of promise on the part of William Carlisle. The whole transaction, however, shows that the signature of James H. Carlisle was no condition precedent to the validity of the contract, but was only suppletory security for the Commissioner.

After a careful review of all the circumstances of this case, the Court is well satisfied that the reputation of the late Commissioner for intelligence, fidelity, and an anxious desire to discharge his duty, and his whole, duty, may well rest upon his conduct in this transaction. He may have been the friend of William B. Carlisle, but in his official capacity, he dealt with *32him as a stranger. He refused to part with the fund committed to him until he had received a bond, properly executed and secured, (as must now be conceded,) beyond doubt or question. So soon as any suspicion arose, or dissatisfaction was expressed, he lost no time in proceeding against all the parties, and adopting the most energetic measures to secure the interests of those whom he officially represented. These efforts ceased only with his life, and so far as the Court can judge, were rendered fruitless only by his lamented death.

It is ordered and decreed that the bill be dismissed.

The complainants appealed, and now moved this Court to reverse the decree of the Chancellor on the grounds

1. Because negligence on the part of the late Commissioner in taking insufficient sureties to William B. Carlisle’s bond, was clearly established by the testimony.

2. Because the late Commissioner failed to discharge his official duty in not taking prompt and energetic measures to collect the bond by suit, and therefore incurred liability.

3. Because (as is respectfully submitted) his Honor erred in ruling that it was the duty of the parties beneficially interested in the fund, and not of the late Commissioner, to look after the sureties, and to take out all necessary orders for suing or securing the bond.

4. Because in considering the question of William Carlisle’s solvency, his Honor *utterly ignores*the Equity proceedings A. D. 1835, of Record in Fairfield District, which (it is respectfully submitted) was notice to the world that the property in his possession was trust property settled by the will of Buchanan on the wife and children of the said William Carlisle, and not liable for his engagements.

*336. Because the decree is contrary to law, equity, and evidence.

*Bellinger, Be Saussure,*for appellants.

*Boylston,*contra.

Per Curiam.

We concur in the decree, and it is ordered that tbe appeal be dismissed.

Johnston, Dunkin, Dargan, and Wardlaw, CC., concurring.

*Appeal dismissed**