#### *Thomas O. Lowndes, and Edward R. Lowndes, executors of James Lowndes, vs. Henry L. Pinckney, James Jervey, Thomas Waties, and Orlando*S. *Rees, executors of Hon. Thomas Waties and others, devisees of the said Hon. Thomas Waties. The same vs. Thomas O. Elliott, administrator of Benjamin Elliott, deceased.*

Whenever a master or commissioner takes charge of funds or estates, under an order or decree of the court, he shall be Held to act officially, and the sureties to his official bond will be liable for his acts, unless he has, by the order or decree, been expressly appointed a receiver, and has given bond and security as required by the Act of 1821.

Where a commissioner took a bond payable to himself, for property sold by him under the order of the court, and retained the bond more than twenty days after the date of his successor’s commission, and received payments thereon after he went out of office, *Held,*that the failure to deliver the bond to his successor was a breach of the condition of his official bond, and that his sureties were liable for the amount of such payments.

A master or commissioner is not authorized to make sales of property after his term of office expires, and for the proceeds of such sales his sureties are not liable.

Where one surety on an official bond was sued at law, and judgment recovered against him for a demand for which, as surety, he was not liable, *Held,*that he could not call on his co-sureties for contribution.

Where a co-surety is sued for contribution, he may resist the demand, on the same principles and in the same way that he could have resisted it if the suit had been by the creditor.

*Before*JOHNSON, Ch. *at Charleston, Jaxiuary,*1842.

*The Chancellor.*In December, 1821, the late Benjamin Elliott was elected Commissioner in Equity for Charleston district, and on the 28th day of the same month entered into bond to the State in the penalty of $30,000, with a condition that it should become void if the said Benjamin Elliott, his heirs, executors and administrators, should well and truly account for and pay over, (whenever lawfully required,) all such sums of money, evidences of debt, and other securities, as should come into his hands by virtue of his said office ; and should well and faithfully discharge and perform the duties of his said office during the whole time that he might continue therein. Defendants, Henry L. Pinckney and James Jervey, were sureties to this bond, *?as were also *the late*James Lowndes, the complainants’s testator, and the late Hon. Thomas Waties. Immediately thereupon, the said Benjamin Elliott entered on the duties of the said office, and continued therein for the space of four years, but in the .end failed to account for divers sums of money which came into his hands in virtue of his said office, whereby the condition of the bond was broken.

Benjamin Elliott died in 1836, and administration of his estate has recently been granted to the defendant, Thomas O. Elliott.

In 1834 a suit was commenced on the said bond against James Lowndes, complainants’s testator, for a breach of the condition by the said Benjamin Elliott, in not *paying*over to Mrs. Mitchell certain moneys which he had received to her use ; and at May term, 1837, judgment was rendered against him for debt, interest and costs, amounting to $1861 13, which sum was paid by complainants’s testator.

Benjamin Elliott is supposed to have died insolvent, and the bill prays that an account may be taken to ascertain the extent of the liability of the sureties for breaches of the condition of the bond, and that if any should prove insolvent, those who are solvent may contribute equally.

The defendant, Thomas O. Elliott, exhibits with his answer' an account of the estate of his intestate which came into his hands to be administered, and of his liabilities ; from which it appears that there were judgments against himin his life time for $9253 26, and of course entitled to precedence of this demand, and that the assets amounted only to about $1400.

Defendant, James Jervey, insists in his answer that the complainants are bound to shew the insolvency of Benjamin Elliott, before they can call on their testator’s co-sureties for contribution ; and he states that in 1820 the said Benjamin Elliott conveyed to the complainants’s testator, James Lowndes, real estate of considerable value, in trust for the use of the wife of the said Benjamin Elliott, for life, remainder to the use of the children of the marriage, and that the conveyance was purely voluntary; and insists that this estate ought to be exhausted before complainants could call on the co-sureties for contribution. No evidence was offered on this part of the defence, and no notice was taken of it in the argument. I shall not, therefore, again recur to it.

This defendant joins in the prayer of the bill, that an account *157should be taken to ascertain the extent of the liability of the sureties, and admits his liability to contribute rateably.

Defendant Henry L. Pinckney, in his answer insists, that in the event of the sureties being held liable, he ought to be credited with certain sums of money which he had been compelled to pay as one of the sureties.

The Hon. Thomas Waties died in 1828, and Thomas Waties, one of his executors, died before the filing of the bill; and Orlando S. Rees, the surviving executor, states that himself and his co-executor had fully administered the estate of their testator, and made distribution of both his real and personal estate, according to the directions of his will, in 1833, and that he had no notice of the liability of his testator, or of this demand, until 1837 ; and he insists on these circumstances as a bar to his liability.

The devisees of the Hon. Thomas Waties, who were subsequently made parties, insist that the statute of limitations is a bar to their liability, as they had been more than four years in possession of their legacies before they were made parties to this bill.

At June term, 1839, an order was obtained directing Gray, one of the masters of the court, to take an account of the debts and assets of Benjamin Elliott, the late Commissioner, and give notice to his creditors to prove their demands. To enquire particularly into the amount of debts due and owing by him on his official bond as Commissioner of the court. . To enquire also, and report, what sums had been paid by his sureties to the said bond respectively, and in what manner they should be charged, in order to an equal distribution towards the satisfaction of the bond.

In pursuance of this order, the master caused notice to be published calling on the creditors of Benjamin Elliott to come in and establish their demands ; and he reports that official debts to the amount of $15333 93, for which the sureties to his bond were liable, were established, and an account of his assets and other private debts, from which it appears that the assets amount to about $1840, and his private debts, principally on judgments, to $3964 97-100.

No exception has been taken to the master’s report on assets or the private debts of Benjamin Elliott; but the sum of his official debts is made up of several separate demands, most of which have given rise to much-contested questions brought up in the form of exceptions to the report. These I shall proceed tp Consider in the order they are set down in the report, refer*158ring as well to the evidence as to the report for the facts out of which they arise, beginning with Elliott’s account as Commissioner, with—

1st. The estate of the late Rev. Doctor Donald M£Leod.

It seems that many years ago Dr. M'Leod intermarried with Elizabeth Bailey Seabrook, the widow of John Seabrook. Previous to the marriage, a settlement was entered into, by which a considerable estate, consisting of a plantation and negroes, was limited to their joint use during their joint lives, then to the survivor for life, remainder to the issue of the marriage in fee, and in default of issue over, (fee. and William Seabrook and Joseph James Murray were nominated trustees of the settlement, but it seems that they never accepted or acted upon the trust. In 18— Dr. M'Leod sold the plantation to Joseph James Murray, and his wife joined in the conveyance. Mrs. M'Leod died in 18— leaving a daughter, Sarah, the only issue of the marriage, now the wife of Dr. J. B. Whitridge. Dr. M'Leod died in 1820, having previously made his will, by which, after many pecuniary legacies, he gives all the residue to his daughter Sarah, and nominates her executrix, and C. G. Capers and another, executors. The will was proved by Capers, who qualified on 24th February, 1821, and Sarah, the daughter, qualified on the 29th of the same month, she being then a minor. Some time after, she intermarried with Dr. Whitridge, and thereupon it seems they filed two separate bills in this court to ascertain their rights under the marriage settlement and the will of Dr. M'Leod ; but all the original records have been lost, and all that can now be ascertained of their contents and object are found in the journals, orders and decrees of the court. From these it may be collected with reasonable certainty, that one of the bills was against William Seabrook and Joseph James Murray, the trustees of the marriage settlement, and that the object was to avoid the conveyance from Dr. M'Leod and wife to Murray for the plantation mentioned in the marriage settlement; and the other against C. G. Capers as executor, and others, persons entitled to the specific pecuniary legacies under the will of Dr. M'Leod — the object of which seems to have been to enable Mrs. Whitridge to elect to take under the marriage settlement instead of the will of Dr. McLeod. It does not appear at what time these bills were filed, but the answer of the defendants in the last case appears from the file book to have been filed on the 1st November, 1822; the bill must therefore have been filed before that time. At March *159term, 1823, an order was made directing the Commissioner to ascertain and report the amount of debts due by Dr. M'Leod, and whether a sale of his estate would be necessary to meet them. The Commissioner made his report at the same term, recommending the sale, and thereupon an order was made directing the Commissioner to sell the whole estate, real and personal. The Commissioner, Elliott, in pursuance of this order, sold the whole estate, in April, 1823, and Dr. Whitridge became a purchaser, to the amount of $17,400, for which he gave his bond to the Commissioner; and at November term, 1823, an order was made that all the outstanding debts due the estate of Dr. M'Leod, be placed in the hands of the Commissioner for collection, by suit or otherwise. Various other orders are found in the journal, which have no other bearing on the case than to shew who were the parties to the bill, from which I have deduced the conclusion that they were the persons I have before supposed.

At January term, 1825, Chancellor DeSaussure pronounced a decree embracing both the causes. They are entitled on the decree *“ J. B. Whitridge et ux. vs. the Representatives of Joseph James Murray and William Seabrook,”*and *“ The same vs. Legatees of Dr. M‘Leod.n*After stating the circumstances, the decree goes on to declare that Dr. Whitridge and wife were entitled, and had elected, to take under the marriage settlement, instead of Dr. M'Leod’s will, and that she was no longer to be considered as executrix, in consequence of her having qualified when a minor. Amongst other things, the Commissioner is authorized “ to collect the debts due the estate of Dr. M'Leod,” using, if need be therefor, the names of the complainants and of the defendant Gabriel C. Capers, who also qualified as executor, and to marshal the assets and pay the debts and legacies as far as the assets would extend.

The commissioner of the court was, by law, entitled to hold his office for the term of four years, and the master reports that Elliott executed his official bond, and entered on the duties of his office on the 8th December, 1821, and it expired, of course, on the 8th of December, 1825. He also reports, that Elliott received large sums on account of Dr. Whitridge’s bond, given for the purchase of McLeod’s estate, a part before, and a large sum after, the term of his office expired, and that a considerable balance in his hands is not accounted for. Out of these circumstances certain questions arise, which I shall have occasion to *160consider in connexion with other claims against *the,*sureties *to*Elliott’s official bond.

2nd. The next in order is the account of Elliott with the Taylor estate.

*By the*marriage settlement of William M. Taylor and Martha, his wife, an estate, consisting of a plantation called Folly Island, a lot in the city of Charleston, a gang of negroes, and other personal property, were conveyed to trustees, in trust for the use of the said Martha, for life, remainder in fee to the issue of the marriage. After the death both of William M. Taylor and his wife, the children, in a proceeding entitled *ex parte*Mary S. Darby *et dl.*petitioned the court for a writ of partition to divide the estate amongst them according to the provisions of the- deed of settlement.

A writ of partition accordingly issued, and the commissioners therein named returned that they had made partition of a few articles, principally household furniture of inconsiderable value, between the parties, and recommended the sale of all the residue, including Folly Island, the lot in Charleston, and the negroes, and some other articles of personalty. On the 19th March, 1822, an order was made confirming the report, and it was also ordered, “ that the property recommended to be sold, shall be sold, on the following terms; — one-third cash, the balance, secured by mortgages of the property, and bonds with personal security, payable, by annual instalments, in one, two and three years.”

In pursuance of this order, Elliott, the commissioner, sold all the negroes and other chattels, on the 6th and 11th June, 1822; and the lot in Charleston, on the 28th April, 1825 — of the proceeds of which, he received one-third in cash, and took bonds for the remainder, according to the direction of the order for the sale. Of these, he received a part while he remained in office, and the remainder afterwards. He sold Folly Island on the 8th November, 1827, nearly two years after he had gone out of office. The proceeds of all the sales, after deducting the charges, amounted to $15,694 89, to be distributed amongst the parties interested, being four in number, Martha P., Elizabeth R., William H. Taylor, and Mary S. Darby.

The proceeds of all the sales were received by Elliott, and payments were, from time to time, made by him to the parties, which, with the interest computed to the 21st January, 1832, *?left a balance due to Martha P. Taylor, of $464 51; to Elizabeth R. Taylor, $491 57; to Mary S. Darby, $283 71; and to William H. Taylor, $183 71.

The commissioner also reports that Elliott was indebted to Martha P. Taylor, $905, and to Elizabeth R. Taylor, $585, “for other moneys arising out of the sales of the same estate,” and that he gave to them, respectively, bonds for the payment thereof, with the defendant, Henry L. Pinckney, as surety. These bonds were sued, and judgment obtained on them. The first was paid by Mrs. Ramsay, for the relief of Pinckney, and she took an assignment of it, and the other was paid by Pinckney; and these, the commissioner submits, cannot be charged against the sureties on Elliott’s official bond, as the new bonds were an ex-tinguishment of Elliott’s official liability.

*3d,*Pending the proceedings in the matter of *ex parte*Mary S. Darby, Elizabeth Mitchell instituted a proceeding in the court against William H. Taylor et al. claiming the right of dower in Folly Island, and praying a writ for the admeasurement thereof, and on the return of the summons, the court decreed that she had released her right of dower, by agreeing to accept in lieu thereof an annuity for life of twenty-one pounds, chargeable on the said lands, and it was ordered, “that the sum of $1400, part of the proceeds of Folly Island, be invested by the commissioner in public stocks, the annual interest of which is to be received by Elizabeth Mitchell, in lieu of her annuity.” This order was made on the 19th of March, 1822. Folly Island, as before remarked, was not sold until November; 1827, and then Elliott retained the money in his own hands, instead of investing it in pursuance of the order. It was for this defalcation that the suit was instituted by Elizabeth Mitchell, and the recovery had against the complainant’s testator, and to which, in their bill, they pray the co-sureties of their testator may contribute.

4th. The fourth, and only remaining claim, offered in evidence against the sureties of Elliott, and allowed by the report of the master, is in behalf of Packard, administrator of Robert Roulain, amounting to $314 50; including interest .up to 1842.

It does not very clearly appear, from the documents accompanying the report, how this demand originated. I collect, however, from an order of the court of the 1st March, 1823, that a suit had been brought by Mary S. Darby, administratrix of R. A. Darby, against Morton A. Waring and others, the object of which appears to have been to marshal the assets of the estate, *162and pay the debts, and that Roulain, Packard’s intestate-, was entitled to recover out of it the sum above stated, and on the day last mentioned, the court, after reciting that the orde'rs before made in the cause could not be carried into effect beneficially to the parties, orders, “ that the Commissioner in Equity,” (Elliott) “ do receive all the papers and money of the estate into his hands, he giving the administratrix a receipt for the same, and that he be directed to place the money at interest, and when the claims in dispute are disposed of he make division among the creditors.”

On the 16th May, 1823, Elliott acknowledges, in writing, to hav’e received from Mary S. Darby, the administratrix, in pursuance of the foregoing order, $3,4-20 38, in cash and bonds, and other evidences of debts due the estate to a considerable amount; and by a certificate dated the 15th April, 1836, he acknowledges a balance of $225, then due the estate of Rou-lain, from the estate of Robert A. Darby, which had “ been placed in his hands by the court of equity.”

The Master concludes his report, by recommending that the sureties to Elliott’s official bond be charged with all the moneys received by him, whether before or after the expiration of the term of his office, on account of the estates of Dr. McLeod, "William M. Taylor, Robert A. Darby, and the sum directed to be invested to pay the annuity of Elizabeth Mitchell.

The exceptions to this report give rise to the following questions.

1st. Whether the sureties of Elliott are liable for moneys received by him after the expiration of his term of office.

2d. Whether they are liable for moneys received by him on account of the moneys, bonds, notes, accounts, (fee. due the estates of Dr. McLeod and Robert A. Darby, placed in his hands under the orders of court before referred to.

3d. Whether the statute of limitations is a bar to the complainants’s claim to contribution from the legatees of Judge Waties.

4th. Whether the sureties are liable for interest on balances found due by Elliott, for the principal of which they are liable.

1st. Many cases have been referred to in the argument to shew that the sureties for a public officer for the faithful discharge of the duties of his office, are not liable for acts done, or moneys received by him, *colore*officii, after the expiration of the term of office. They clearly establish that position, and it *163is a matter of surprise that such a question should ever have been seriously raised. An official bond is but a contract, and must, of course, be construed by the same rules as other contracts ; and when the sureties undertake that their principal shall faithfully discharge the duties which the office requires of him, it is impossible, by any process of reasoning, to infer that it was intended that they should be liable for acts done by him after his office had expired, and in violation of law. By the Act of December, 1821, *7*Stat. 324, the master or commissioner of the court is required, on the expiration of his term of office, to deliver over to his successor “ all papers and documents appertaining to his office, together with all the moneys, bonds, notes, certificates of stock, and other property, received and held by him under the authority of the court, within twenty days after the date of the commission of his successor,” and it would seem that the Legislature, not content with the limitation imposed by law on the term of his office, intended to put it out of his power to do any act under color of it after it had expired.

In the case of *Hunt vs. Elliott,*1 Bail. Eq. 90, decided in 1822, it was held that the former commissioner of the court, after the term of his office had expired, might go on and complete the sales of estates which had been advertised for sale by him before he went out of office, and if that was the law, I concede that his sureties would have been liable for them; it would have been done in pursuance of the duties of his office. But that case was solemnly and directly overruled in *Gray vs. Keith,*decided in the Court of Appeals in 1832, (not reported) in which it was held, for reasons too palpable to require repetition, that a commissioner or master had no authority to sell after the expiration of his office, although the property had been advertised by him before, or to do any other official act.

The case of *Hunt vs. Elliott*was referred to as establishing a rule of the court authorizing Elliott to sell Folly Island, and to receive moneys after he went out of office, and I concede that the decision in that case was well calculated to mislead, but as a rule of the court, it will not be permitted to contravene the law of the land, nor to disturb the rights of property.

It follows that Elliott’s sureties are not liable for any moneys received by him after the expiration of his office, either from the sales of property made by him, or otherwise, and that the co-sureties of complainants’s testator are not liable to contribute to the payment of the amount recovered by Elizabeth Mitchell *164against Mr. Lowndes, because that demand was on account of the sales of Folly Island, after the expiration of his office.

2d. If the custody of the moneys, and of the bonds, notes, accounts, (fee., of the estates of M’Leod and Darby, and the collection and receipt of moneys due upon them, devolved on Elliott, as part of the duty of his office, then, of course, his sureties are responsible; and whether it did, or did not, is the question to be considered.

At the time of these transactions the Commissioner of the court was authorized by law to exercise all the powers and perform all the duties of the Master, and was, of course, liable to the same responsibility. The two offices were indeed identical, differing only in name. Since that time, by an Act of the Legislature, although the two officers are retained, they are both designated as Masters, and, as before, exercise the same powers.

Before the Revolution, the powers of the Court of Chancery were exercised by the Governor and his Council, and neither the legislative or judicial history of the court, up to that period, furnish any information as to the duties of the Master of the court. The existence of such an office is first recognized in the Act of 1721, but there is nothing in it pointing to the duties of it. But that Act directs that the proceedings and determinations of the court shall be according to the known laws of England. Numerous Acts have since been passed, prescribing the mode of appointment, term of office, and the security required of him for the faithful discharge of the duties of his office, but none of them prescribe any 'duty, except the Act of 1791, 7 Stat. 259, sec. 6, which requires him to make sales of all property ordered by the court; to ascertain his other duties we must therefore look to other sources.

The general organization of the Court of Equity of this State, is based on the English Court of Chancery. The mode of proceeding is the same, the same formula of process and pleading are used, and the decisions of that court are regarded as authority here, so far they are applicable to the state of things existing here, unless they have been varied or changed by positive enactments. of the legislature, or by the adjudication.and usage of our own courts. It is, therefore, legitimate, in the absence of any rule of our own, to look into the duties required of the chancery officers there, to ascertain what they are here.

It must be unprofitable, in the discussion of this question, to enter into a detail of the duties required of that phalanx of *165officers which are attached to the Court of Chancery in England. From the nature of their offices, none of them can be supposed to have any thing to do with funds or other things brought into court, or funds arising from sales made under the order of the court, except the Master and the Accountant General. The power of the Master over this subject, is that of selling estates under the order of the court; 1 Smith’s Ch. Pr. 9 ; but even he-has no authority to receive the proceeds of the sale. His duties are, indeed, inconsistent with the exercise of such an authority, as to him belongs the power of appointing Receivers,' and compelling them to appear before him. The Bank of England is the repository of all the funds in court, whether arising from sales or otherwise. Ibid, 22. In 2 Smith’s Ch. Pr. 191--2, the precedent of an order will be found, when, after the sales had been confirmed and completed, the purchaser was directed to pay the purchase money into the bank. • Nor is the Accountant General entitled to receive or keep funds or effects in court; they are to be paid or deposited in bank in his own name, and his duty in relation to them consists in keeping an account with the bank, according to the causes and accounts to which such money and effects severally belong. 1 Smith’s Ch. Pr. 22. In cases where it is unsafe or unreasonable that either of the parties should have the possession of lands or other things in question in the court pending the suit, some one standing indifferent between the parties is appointed a Receiver, who is required to enter into recognizance, with sureties, for the iaithful discharge of his duties, and he is bound to place the . funds which come into his hands, in the bank, with the knowledge of the Accountant General, and to account to the Master. 1 Smith’s Ch. Pr. 628, chap. 10. 'The orders of the court, directing the monies, bonds, notes, accounts, *&c.,*of the estates of M’Leod and Darby, to be placed in the hands of Elliott, so far as they required him to collect and receive the money due on them, are precisely those required of a Receiver in England, and did not, I apprehend, pertain to the duties of his office as Commissioner.

The usage of the court has been referred to, as appropriating these duties to the offices of Masters and Commissioners, and it is true that it has been done very frequently, and through a long period of time, but my own experience is, that it never has been done, (or if done at all, in rare instances,) when a suitable person could be obtained to discharge the duties, or against the *166consent of the parties. So much for the usage. The well known history, of the Act of 1821 is, that it was intended to prevent the abuses growing out of the habit of some of the Masters and Commissioners of the court, with a view to their own emolument, to recommend, by report, that funds or estates in controversy should be subject to their control and management. But whatever might have been the law or the usage before, that Act, the Act of 1821, puts an end to the matter. By the very terms of the Act, he is required, when appointed Receiver, to give bond and security to the judges of the court, in a sum equal to twice the value of the *estates*intrusted to him, for the faithful discharge of his duties. It may be that the parties might consent to his acting in that character, without giving the bond and security, but if the bond was intended for no more than a protection to the sureties to his official bond, and the parties have dispensed with it, they must take the consequences. The sureties of Ellio.t are not liable, therefore, for any moneys received by him under the orders of the court directing him to receive the moneys, bonds,, notes, accounts, *&c., of*the estates of M’Leod and Darby.

3d. The statute of limitations is no bar to the claim of the complainants against the legatees of Judges Waties, for contribution, to the extent that their testator was liable. The statute cannot operate until there is a liability and a right to sue. The complainants had no right to sue until they had paid the amounts recovered against them by Mrs. Mitchell, which they did but a short time before the filing of the bill.

4th. Generally, public officers entitled to receive moneys for others, are not liable for interest on moneys in their hands, until a'demand is made; but that rule proceeds on the supposition that he has it ready to be paid when demanded, and 'does not obtain when he has misapplied them, or appropriated them to his own use. *Spencer vs. Gibbes,*Dud. Eq. 177--8--9. That is the case here, and Elliott’s sureties are liable to the same extent that he would have been, and are chargeable with interest on all sums retained by him, when received in his capacity as *Commissioner.*

It is, therefore, ordered and decreed, that the accounts be referred back to the Master, to be restated according to the principles of this decree.

The legatees of the Rev. Dr. M’Leod appealed, on the grounds :—

*1671. That the sureties of a Master in Chancery are responsible for all acts done by him under the order of the court.'

2. That they are responsible for all bonds, stocks, money, and choses in action, which came into his hands *virtute officii,*and which are not accounted for, or delivered up by him, at the expiration of his office.

3. That his securities are accountable for all the Master’s acts which might properly belong to a receiver, wherever he is appointed to do the duties of a receiver by the court, without being at the same time required to give security in the special case.

E. It. Taylor, Martha P. Taylor, and others, children of William M. Taylor, appealed, on the following grounds :—

1. That the said appellants were entitled to a decree in this case against the sureties of the late B. Elliott, Commissioner in Equity, for the sum of fourteen hundred and twenty-two dollars, seventy-one cents, decreed against B. Elliott, in the decree filed in 1836, in the case of Eliza R. Taylor and others vs. Benjamin Elliott, late Commissioner, with interest from that date.

2. That at the hearing of the cause, at January term, 1842, the accounts rendered by Benjamin Elliott to the children of William M. Taylor, of the sales of the personal estate of William M. Taylor and wife, made during his term of office as Commissioner, in 1822, were given in evidence, from which it was proved that B. Elliott paid to Mrs. Elizabeth Mitchell, for her dower on Folly Island, from the moneys arising from the sales of the personal estate, five hundred and fifty-eight dollars; which payment was unauthorized by the decree, and in violation of Mr. Elliott’s duty as Commissioner, and being a default, for which his sureties were responsible, the appellants were entitled to a decree for that amount, with interest from 20th January, 1826, the day when he was required by the Act of 1821 to deliver over all moneys in his hands to his successor in office.

3. That these accounts, above referred to, formed a part of the evidence on which the decree in 1836 was predicated, which decree was before the court in the present case, as the appellants’ demand, and the misappropriation of the said sum of five hundred and fifty-eight dollars being so manifest, and the fact not having been disputed at the hearing, it is respectfully submitted, a decree should have been made for refunding that amount, with interest, by the sureties, without the necessity of further references.

*168The administrator of Roulain appealed, on the grounds following : — •

1. That the funds received by Benjamin Elliott, from the estate of R. A. Darby, were paid to him during his term of office, for which the' sureties to his official bond were responsible.

2. That the debt claimed by the appellant was fully established, and should" have been decreed to be paid.

The complainants also gave notice of appeal as follows:

The complainants pray that so much of the decree as rejects the claim of Mr. Lowndes for contribution against his co-sureties on account of the money paid by him m satisfaction of Mrs. Mitchell’s judgment on the official bond, may be reversed; or else, that the cause may be remanded for further inquiry in this particular.

*King, for the*creditors of Elliott.

The decree rests on *the*ground that the rules and practice in England, of the present day, are to govern. This we deny, and contend, that in the absence of any rule of practice laid down by our own courts or adopted by our Legislature, we are to look for our guide, not to the chancery practice as it now exists in England, but to that practice as it existed at the time our first Court of Chancery was organized. ■ The first Act establishing a Court of Chancery in South Carolina, was passed in 1720. This Act is lost, but its title will be found in Trott, 333. The next Act was passed in 1721 ; Trott, 460 ; P. L. 110 7 Stat. 163. It repeals the Act of 1720, and its § 10 provides “that the court shall proceed, adjudge and determine in all causes, as near as may be, according to the known laws, *customs,*statutes and usages of the kingdom of Great Britain ; and also, as near as may be, according to the known and established rules of his Majesty’s high Court of Chancery in South Britain.” This is the only authority which the court ever had, for saying that the practice in England is to govern in this State. What, then, does the Act mean *'l*Not, surely; that the Chancery practice in this State shall fluctuate with the English practice. That every statute passed in England shall be law in this country. That every rule adopted by the Chancellor there, shall be the rule here. Surely the Act meant no such thing. What it meant was this : that the rules which existed in England at the time the court was organized — in 1721 — should be the rules in this country. It is important, then, *to*enquire what was *the*practice in England in 1721. Was it the same in relation to the master’s duties as exists there now,, *?and as laid down by the Chancellor? Harg. Ess, 307, 8, 9; Fleta, Book 2, ch. 13 ; 4 Inst. 407; Com. Dig. Chancery, B. 5; Har. Ch. Pr. 73, 79, 80, edition 1791. These authorities shew what those duties were, and they are almost identical with his duties in this State, according to established usage. In England the whole practice in relation to the duties of the masters, and in many other respects, was altered in 1725, four years after our Act was passed. Stat. 12 Geo. 1, c. 32; 5 Eng. Stat. 591. This statute was passed in consequence of certain malversations in office, made manifest on the trial of Lord Macclesfield, 16 State Trials, 762.

What was the practice in this State under the Act of 1721 ? All the offices here were blended into one, the master’s, except the register’s. 1 Des. 107. The cases of *Earnest vs.*Muller, 1 Des. 115, (1785.) *Salvador vs.*Rapley, lb. 126, (1785,) and *Read vs.*Prince, lb. 142, (1787,) and the rule of court of 1811, lb. 64, shew the practice of the court, and that the master, as master, was required to discharge the duties of receiver. The case in Bail. Eq. 468, shews how far the usages of the court are law.

The power of the court to make rules which operate as law, cannot be questioned. In *Hunt vs.*Elliott, Bail. Eq. 93, decided in 1822, it was made a rule of court, that a master in Chancery might sell property after his term of office had expired. This case was overruled in 1832, in *Gray vs. Keith.*Now arises the most serious question in the case. Will the court say that all sales made under the rule of 1822, were void ? The consequences will be monstrous. Can the rule of 1832 have a retroactive — an *ex post facto*— operation *1*Such an Act by the Legislature would be void; and has the court higher powers than the Legislature?

As to the liability of the sureties, for the monies received on Dr. Whitridge’s bond, he cited the 6th sect, of the Act of 1821, 7 Stat. 324.

*H. A. DeSaussure,*for the devisees of Judge Waties,

contended that Elliott, under the orders respecting M'Leod’s and Darby’s estates, acted as receiver and not as master. He cited 2 Story Eq. 129; 8 Com. Dig. 890; Har. Ch. Pr. 16 ; 2 Com. Dig. 359 ,• 3 Peters Dig. title Sureties, pi. 2, 3, 4, 10, 18; 3 Madd. Rep. 221 ; 2 John. Ch. 554 ; 7 Johns. 332; 1 Story Eq. 320: 2 Ball *&*Beat. 65.

*170He further contended, that the complainants have no right to call on the co-sureties of Mr. Lowndes for contribution, on account of the amount paid on Mrs. Mitchell’s judgment.

*Memminger,*for Mr. Jervey.

Are the sureties liable for the monies received on Dr. Whitridge’s bond, after Elliott went out of office ? In considering this question, it should be borne in mind that Dr. Whitridge was executor, in right of his wife, of M‘Leod; that only one instalment of the bond became due -before Elliott’s term of office expired, and that the bond was ultimately delivered by Elliott to *his*successor. Before the sureties can be charged with the receipts of moneys, should it not be shewn that those receipts were valid *1*Now, if those receipts were valid, Elliott must have acted either as master or receiver. He did not act as master, because his term of office had expired; if he acted as receiver, his sureties as master are not liable.

The liability of a surety cannot be extended beyond the terms of his contract. 9 Wheat. 703 ; 6 East, 508, 513 ; 2 Hill, 590 ; 1 McC. 41 ; 1 Des. 450; 12 Wheat. 505. The condition of Elliott’s bond is, that he shall faithfully discharge the duties of his office. If the receipt of the money was not a part of those duties, upon what principle of justice can it be held, that the not accounting for it is a breach of the bond ?

A master cannot be appointed receiver; 1 Smith Ch. Pr. 633. This w-as the law in South Carolina until 1821. 6 Ves. 467. It is entirely a *non sequitur,*that under the Act of 1721, the practice in England, previous to that year, was adopted in this Province. -7 Stat. 192. This Act, passed in 1746, repealed, in part, the Act of 1721; and, *inter alia,*provided that the proceedings in this Province should conform to the practice of the courts of Chancery in America. There is no such practice in any State, as a master’s receiving moneys. The duties of masters are, as councellors and assistants of the Chancellor. Harg. 295-6 ; 1 Smith Ch. Pr. 9, 10. He further cited 7 Stat. 258; Amb. 599 ; 2 Hill, 406.

As to the claim for the proceeds of Folly Island, he said, if it were not for the case of *Hunt vs., Elliott,*it never could be imagined that the sureties were liable. It is a mistake to suppose that a rule of court was made in that case; it was merely a decision in a cause. The case of *Gray vs. Keith*overruled that case. The argument, as to judicial legislation, applies to every case in which the court is called on to settle a question.

*Petigru,*for the complainants,

contended,

*?1. That, by the common law, the duties of master and receiver are distinct.

2. That there has been no change in South Carolina in this respect.

3. That the duties assumed by Elliott, were those of a receiver ; and

4. That the sureties on a master’s official bond are not responsible for his acts as receiver.

The masters in Chancery are the councellors of the court; 1 Har. Ch. Pr. 58; and whatever the master can do for the Chancellor, the Chancellor can do for himself at the Common Law. The only exception made by statute, is in the case of sales.

What is a receiver ? He is the hand of the court, as the sheriff is the hand of the judge. He is the *sequestrator*before the decree, as the sheriff is the *sequestrator*after it. 1 Ch. Ca. 91; 3 Swanst. 279, 109 ; 1 Har. Ch. Pr. 191; 3 Atk. 564; 2 Yes. 400; 2 Madd. Ch. 245; 1 Yes. Jr. 165 ; 15 Yes. Jr. 283; Stat. 12 Geo. 1, c. 32. Money brought into court for safe keeping, was paid to the usher. 16 State Trials, 767. When it was to be laid out on security, it was paid to the master; but this was not until after the decree. In this State, there is no usher, no accountant general; and admitting that the master is both, yet he is no receiver. The master is a depositary, merely — a treasurer. The receiver is the overseer, who puts out the money on interest — collects it — makes it. The master is the keeper of the money when it is made. The distinction between the master and receiver is not more broad, more obvious, than that between the cashier and the collecting clerk of a bank. That distinction was well known, previous to 1721; 3 Story Com. 33, 651; 8 Yiner Ab. 160 ; 3 P. Wms. 379 ; 2 Bro. P. C. 504.

The usage of the court has been referred to, but mere practice will not make law. The principle of *communis error facit*jus, does not apply to orders.taken by consent. Produce the case in which an unwilling master was forced to act as receiver, or where the surety was made to pay, and a precedent will be admitted. All the orders in the cases cited were taken by consent; can such practice make law ? Masters have often been appointed receivers, but no precedent can be found in which a master’s sureties have been made liable for his acts as receiver.

The decree of January, 1825, in relation to M‘Leod’s estate, *inter*alia, provides as follows : *“*that the commissioner be, and is hereby, authorized and required to collect the debts due to that; *172estate, using, if need be therefor, the names of the complainants and of the defendant, Charles Gabriel Capers, who also qualified as executor on the estate; and that the said commissioner do marshal the assets of the said estate, and pay therefrom, as the same may be realized, the debts due by the said estate, according to their rank, rateably and proportionably; and after the payment of the said debts, that the said commissioner be, a.nd he is hereby, authorized and required to apply the remaining assets of the estate, as they are realized, in paying the legacies given by the will of the said Donald MfLeod, with the interest thereon, ratea-bly and proportionably; and should any surplus remain after the payment of the said debts and legacies, then that the same be invested, subject to the residuary uses and limitations of the said will.” Does not this decree place the commissioner in the stead of the executors, and is not this the very purpose for which a receiver is wanted ?

As to Dr. Whitridge’s bond, the master, as such, was doubtless liable for it. But that liability extended only to the bond itself. As to it the master was a mere depositary. He had no authority to collect it. He could not put it in suit, without the order of the court, and no such order was ever made.

It is impossible, perhaps, to say where the duties of master end, and those of receiver begin, but this does not prove that they are not distinct. Does not the same difficulty exist, even in the material and physical world 7 Who can say where vegetable life ends and animal life begins ?

Can there be any doubt if Elliott had given bond as receiver under the Act of 1821, that the sureties to his official bond would never have been called on ? When the parties on both sides name a receiver, it is not usual for him to give bond. 3 Bro. Ch. C. 365; 1 Dick. 68; Elliott acted as a receiver without giving bond, by the consent of the parties.

As to the liability of the sureties for Elliott’s acts after he went out of office, he cited 2 Bro. C. C. 579 ; 2 Ves. Jr. 540 ; 18 Ves. 20 ; 4 John. Ch. 123; 2 Saund. Rep. 412.

As to the claim of Mr. Lowndes for contribution, he submitted that, as the judgment was *bona*fide, the co-sureties were liable. The question was *res judicata.*

*Mr. Petigru*further cited 2 Atk. 610; 3 Camp. 388; 16 Ves. 346 ; 8 Ves. 192 ; 1 Atk. 489 ; 2 lb. 316 ; 4 Johns. Ch. 619 ; 2 Bail. 199 ; 2 McC. Ch. 304.

King, in reply, cited 7 Stat. 192, 165; 1 Har. *Ch.*Pr. 79; 2 *173Bro. Ch. C. 483; 2 Atk. 126, 213 ; 2 Sch. and Lef. 26; 2 Cox 377; 3 Russ. 130-7 ; 2 Story Eq. 138 ; 1 McC. Ch. 406 ; 1 Hill Ch. 414 ; Dud. Eq. 232 ; 1 Peters R. 46, 72-3 ; 7 Johns. Ch. 332; 9 Wheat. 737; 1 Bail. Eq. 93; 2 Ball and Beat. 75.

*Curia, per*Dunkin', Ch.

What were the precise powers and duties of a master in chancery in England, in 1721, it is not very easy now to ascertain. By the Stat. 12 Geo. 1, c. 32, the office of Accountant General was established. This statute was passed in 1725, four years subsequent to the organization of a Court of Chancery in South Carolina. The Accountant General stands in the place of the master and usher, and is required “to do all such masters and things relating to the delivery of the suitors’ money and effects into the Bank, (fee., and keeping accounts, «fee. as by the orders of the Court of Chancery are to be done by the masters and usher. And the masters and usher were to make up their accounts with the Accountant General, and pay into the Bank all money remaining, in their hands, to be placed to the account of the Accountant General ; also all mortgages, tallies and securities, standing in the masters’s or usher’s name in trust for the suitors, to be assigned to the Accountant General.” 1 Har. Ch. Pr. 64, (edition 1796.)

The office of Accountant General has never been established in this country. But we are all of opinion that the duties required by the orders of the court in the cases of *McLeod and Darby,*were such as had been usually imposed on the master, or commissioner, by *the*practice of the court from its earliest organization. Many cases have been cited from the reports, commencing, some of them, in 1785; and the rule adopted in 1811, indicates, very clearly, what was the practice of the court, and the propriety of regulating it. It is there provided that “the master and commissioners in Equity shall, at the first sitting of their respective courts in every year, severally make report to the court of the different estates in their hands under and by virtue of any decree or order of the court, with a full and particular account of the moneys received and paid relating to the said estates.”

Now, whatever may have been the appropriate and peculiar duties of the masters in chancery in England, prior to 1721, if it had been the practice of the Court of Equity, in South Carolina, since its first organization, to impose on the master duties which more properly belong to a receiver, the master, elected under a presumed knowledge of this practice, is bound to per*174form those duties, and for any neglect or malfeasance, the sureties on his official bond are responsible to the party aggrieved.

In a new country, and in courts of limited business, the duties of several officers are frequently united in one. In every district of the State except Charleston, the commissioner of the court is. also register.

In the Circuit Court of the United States the clerk discharges all the duties of commissioner and register in Equity. In large banking institutions there is a variety of officers, each with his appropriate duties, President, Cashier, Tellers, book keeper, *&c.*but in smaller institutions, the duties of cashier and teller, &c. in themselves perfectly distinct, are frequently united, and an officer, elected as cashier, is bound for any neglect or defalcation as teller. Such was the decision in *Minor vs. The Mechanics Bank of Alexandria,*1 Pet. 46. Minor had been elected cashier of the bank, and given bond for the faithful discharge of his duties as cashier, but under an existing regulation of the directors, the cashier was also required to discharge the duties of teller of the bank. In an action against the surities for the default of Minor as teller, it was determined that they were responsible; the Supreme Court of the United States holding, that the official bond of the cashier must be construed to cover all defaults in duty, which are annexed to the office from time to time, by those who are authorized to control the affairs of the bank, and the sureties in a bond are presumed to enter into a contract with reference to the rights and authorities of the President and Directors under the charter, dec. So, here, the practice of the court having been to require of the master or commissioner to discharge duties which may be said to belong more properly to a receiver, both that officer and his sureties must be presumed to have contracted with reference to that practice, and are bound by it. It is not easy always to define with precision what are the duties of a receiver, as distinguished from *those*of a master or commissioner. Since the establishment of -the office of Accountant General, in 1725, the practice of the Court of Chancery in England can afford us no light, and the practice in South Carolina has certainly been to unite the duties in the same officer. This difficulty, and some irregularities which grew out of it, led, it is believed, to the passage of the Act of Assembly of 1821, 7 Stat. 323. As the fee bill allowed commissions to the master or commissioner only in the case of sales, and then only of ope per cent, after the first $100, it was contended, for a short *175period prior to the adoption of that law, that in every other case, when moneys or securities for debt passed through the hands of the commissioner, he was a receiver, and not within the provision of the fee bill, and therefore entitled to the ordinary compensation of 2 1-2 per cent, on receiving and 2 1-2 per cent on paying over; and that where securities for debt were turned over, the commissioner, as receiver, was entitled to the same compensation as if money was paid by him. Nearly every clause of the Act of 1821, points to the evil and provides a remedy. It’ is impossible not to perceive that the law was passed, not in ease of the commissioner and sureties, but for the protection of the. suitor. Whenever the master or commissioner should thereafter assume the character, or claim the compensation, of a receiver, it should be his duty to shew that he had complied with the provisions of that law by giving bond and security as such. The Act also prescribes his duties, and provides his compensation, when so appointed. The fourth clause provides that “every master or commissioner in equity shall keep a book, in which he shall open and keep a regular account with every individual or estate on whose account, he has or shall hereafter receive any moneys, bonds, notes, stock, choses in action, or other property of any description whatsoever, by *virtue*of his office, or of his *appointment as*receiver,” (fee. in which account he shall credit the parties or estates with every thing received, and debit all payments on account of said parties or *estates;*contemplating, evidently, that the master or commissioser was still to continue to discharge the duties which had been ordinarily imposed on him, and providing that his accounts should be kept in precisely the same way when the duties were discharged officially as when they were discharged by virtue of his appointment as receiver.

The Act of 1821 was manifestly intended to afford no facility to the appointment of the master or commissioner as receiver. It may perhaps be worthy of consideration whether it ought not to be expressly prohibited by law, and a separate office of receiver created. In England it is never permitted, and for the very satisfactory reason, that the master is the proper officer to audit the accounts of the receiver. But considering the long established usage of the country, it is regarded as important for the character of the court, and due to the confidence reposed in it by the community, that, whenever the master or commissioner takes charge of funds or estates, under an order or decree of the *176court, he should be held to act officially, and be officially responsible, unless he has, by the order or decree, been expressly appointed a receiver, and has given bond and security as required by the Act of 1821.

In regard to the estate of McLeod there can be no doubt of the original liability of the commissioner. Under the Act of 1791, 7 Stat. 259, it is made the duty of the master or commissioner, in the several districts of the State, “to make all sales under the decree of the court.” By the order of March 1823, the corhmissioner was directed to sell all the estate, real and personal, of Dr. McLeod, on the terms specified in the order. In April 1823, Mr. Elliott made the sale, and, among other things, received the bond of Dr. Whitridge, as one of the purchasers, for $17,400. For all sums received on these sales, during his official term, it is not questioned that his sureties are liable, unless they were paid away or disposed of under the authority of the court. Mr. Elliott’s term of office expired on the 28th December, 1825. Prior to that period he had received seven thous- and dollars on the bond of Dr. Whitridge, and within the following six months he received various other sums, amounting altogether to about nine thousand dollars more. In subsequent years he received small sums, amounting altogether to about six hundred dollars. The last payment was in 1833, about which time the bond was transfered to Mr. Gray. It appears by the report of Mr. Gray, that *the*balance appearing to be due on *the*bond was subsequently paid to him, and the bond delivered up to the obligor, Dr. Whitridge.

This bill is prefered by the complainant, one of the sureties of Mr. Elliott, requiring, amongst other things, that all his official creditors should establish their demands. The creditor is, of course, entitled, in this court, and under these circumstances, to rely on any breach of the condition in Mr. Elliott’s official bond. By the sixth section of the Act of 1821, it is provided “that, on the resignation, dismissal from office, or expiration of the term of office, of any master, commissioner or register in Equity, all the papers and documents appertaining to his said office, together with all the moneys, bonds, notes, certificates of stock, or other property, received and held by him under the authority of the said court, shall be delivered over by him to his successor in office, within twenty days after the date of the commission of such successorand by the last clause of the Act it is declared “that should any master, commissioner or register in Equity, *177violate or neglect any of the duties prescribed to him by this Act, he may be punished by the Court of Equity, as for a contempt, and his official bond may also be sued by any party aggrieved by his said violation or neglect of duty.”

The bond of Dr. Whitridge was among “the papers and documents appertaining to his office,” in the possession of Mr. Elliott when his term expired. It was not delivered over to his successor within the period prescribed by law, nor for six years after-wards. In the mean time, he was enabled to hold himself out as the holder of the bond, and ostensibly entitled to receive payment of it, and did receive payment of the greater part of the bond. In the judgment of the court, the sureties of Mr. Elliott are responsible for the sums thus received by him, in consequence of this neglect or violation of duty. It is not an answer to say, that his successsor, Mr. Gray, or the obligor, Dr. Whitridge, might be required to pay these sums. If Mr. Elliott had wilfully burnt the bond, or collusively delivered it up to Dr. Whit-ridge, without payment, during his official term, could he or his sureties turn the suitor over to an action at law on a lost or destroyed bond, or to a bill in- chancery to set up the security thus improperly cancelled ? We think not. There was, or ought to have been, a surety to Dr. Whitridge’s bond, whose claim to protection might well add to the embarrassment. We do not think that a suitor should be thus driven to encounter these difficulties created by the neglect of official duty by the commissioner, for the faithful discharge of which, not the suitor,, but the sureties on his official bond, had covenanted. It may be that Mr. Elliott supposed himself entitled to retain the bond, and receive the money, either as receiver or as private agent of the parties, and that he was not bound to deliver it over to his successor, under the provisions of the Act of 1.821. But this error of judgment does not alter the consequences of the act.

The remarks heretofore made decide the question as to the liability of the sureties for the funds of the estate of, R. A. Darby. * It may be, as was suggested at the bar, that the bill was for the appointment of a receiver. The first order directed that the funds should be paid into the bank of the State as receiver. But the order of March, 1823, reciting that the previous orders could not be carried into effect, directs *“*that the Commissioner -in Equity do receive all the papers and money of the estate into his hands, he giving the administratrix a receipt for the same, and that he be directed to place the money at *178interest, and. when the claims in dispute are disposed of, to make a division among the creditors.” For the reasons before stated we think the funds received under this order were held in his official capacity. According to the decision in the *Treasurers vs.*Bates, 2 Bail. 362, the acknowledgement to Packard after the Commissioner went out of office, is sufficient *prima facie*evidence against his sureties.

The court concur entirely with the Chancellor in regard to the sales of Folly Island, and do not deem it necessary to add any thing *to*what is said in the decree.

So, too, in regard to the liability of the co-sureties to contribute to the complainants on account of the payment of Mrs. Mitchell’s judgment, we think the decree of the circuit court must stand. The principle on which co-sureties are bound *to*contribute, is thus stated by C. J. Marshall, in *Lidderdale vs.*Robinson, 2 Brockenb. C. C. R. 159, as the result of all the cases ; “where a person has paid money for which others were responsible, the equitable claim which such payment gives him on those who were so responsible, shall be clothed with the legal garb with which the contract he has discharged was invested, and he shall be substituted, to every equitable extent and purpose, in the place of the creditor whose claim he has discharged. This principle of substitution is completely established in the books, and, being established, it must apply to all persons who are parties to the security, so far as is equitable. The cases suppose the surety to stand in the place of the creditor, as completely as if the instrument had been transfered to him, or to a trustee for his use.” Giving to the complainants’s testator the full benefit of this principle, and placing him *quoad*his claim on the co-sureties, on the most favored footing of the original creditor, it has just been determined that the original creditor, Mrs. Mitchell, was entitled to recover nothing.

But it is said this payment was made by the complainants’s testator, after a trial at law, and the judgment of the court establishing his liability. On inspection of the record, which has been submitted to us, it appears that the defence offered was, that Mr. Elliott acted as receiver in this transaction ; and on that issue we have just held that the decision was .correct. But no authority was adduced here, to shew that the co-sureties were bound by that judgment, or that it was evidence of their liability. They were not parties to the record, nor does it appear that they were privies. “ It is a general rule,” says Mr. *179Starkie (1 Ev. 195) “that a verdict shall not be used as evidence against a man where the opposite verdict would not have been evidence for him.” If Mrs. Mitchell had failed to recover against Mr. Lowndes in consequence of any defect in proof, or other cause, it is not perceived that the verdict could be given in evidence to defeat a recovery, in her actions against the co-sureties. So, if a co-surety has a receipt in full, or other satisfactory defence, it would not be contended that a verdict against the other surety could debar the use or the validity of the defence. According to *Lidderdale vs. Robinson,*this is the criterion ; — the co-surety takes the place of the original creditor, and may be resisted on the same principles and in the same way.

We are also of opinion that this claim for contribution must stand on the pleadings and proof already adduced. Counsel differ on the question whether this claim was resisted in the circuit court, and the defendant objects to the introduction of any new testimony. Under these circumstances, we do not think that the mere suggestion of the complainants, that a different case could be established, would warrant this court in opening the decree on this point, and directing a further inquiry.

It is ordered, that the decree of the circuit court be modified, and the account of the Master reformed, according to the principles of this decree.

Evans and Wardlaw, JJ. concurred.

Richardson, J. absent at the hearing *propter invalitudinem.*

Harper, Ch.

I concur, unless with respect to the judgment against Mr. Lowndes. I think the decision of the court was conclusive on him, though he did not appeal. If he had paid by advice of counsel, I should think that he ought to have contribution. *McDowall vs. Blake.*It might have been shewn that he was guilty of *laches*in not making the defence he ought to have made. But this was not alleged, nor the complainants called on to meet it, nor was it in any manner in issue. What the plea was, which was made in the court of law, came out only incidentally; the record being produced by the complainants’ own counsel.

Johnston, Ch. and Butler and Frost, JJ. concurred in the general conclusion indicated by the opinion of Chancellor Dunkin, but differed from him with respect to the money received from Dr. Whitridge on his bond, after the expiration of Mr. Elliott’s term of office.

*180O’Neall, J. concurred in the opinion of Chancellor Dunkin in all respects, except that he thought Mr. Lowndes was entitled to contribution from his co-sureties, in the case in which there was a recovery against him for Mrs. Mitchell’s claim.

Joi-iNsoN, Ch.

*dissenting.*I regret that circumstances which I could not control, prevented my hearing the entire argument in this cause at the hearing here, but having twice before heard it fully argued, first in the circuit court, and again in the Court of Appeals, I feel so fully possessed of all the questions involved, as to justify my expressing a decided opinion upon them ; and I should be satisfied simply to declare my adherence to the decree of the circuit court, but for the conviction that the judgment of this court inculcates principles at war with long settled and universally received rules of law, applicable to a wide range of contracts in general use, in relation to which I propose to add something to what is said in the circuit court decree.

The first question which I propose to consider- is, whether the sureties of Elliott are liable for the moneys received by him under the order of the court of November, 1823, directing “that all the outstanding debts due to the estate of Dr. M’Leod, be placed in the hands of the Commssioner for collection by suit or otherwise,” and under the order of the 1st March, 1823, directing “ that the Commissioner do receive all the papers and money of the estate” (of Robert A. Darby,) “ into his hands, he giving the administratrix a receipt for the same : and that he be directed to place the money at interest, and when the claims in dispute are disposed of, to make a division among the creditors.”

It has not and will not be questioned, that according to the practice in the English Chancery Courts, the duties required of Elliott by these orders properly belonged to a receiver, who is not now, and never was, a standing officer of the court, but a person standing indifferent between the parties, appointed by the court to take the possession and management of lands and other things in controversy, pending the suit, where it was improper to trust either of the parties with it. Here the assets of the estates were taken out of the hands of the executor in one case, and the administratrix in the other, and put into the hands of the Commissioner to be administered, which was unauthorized unless they were unfit to retain them, and ought, then, according to the English practice, to have been put in the hands of a receiver. But I am willing to concede that, under the usage which universally prevailed before the Act of 1821, *7*Stat. 323, *181these duties were properly assignable to the Master or Commissioner of the Court, and appertained to the duties of his office, and that his sureties would have been liable for any defalcation in the execution of them. If, however, I have not grossly misinterpreted that Act, it was intended to reform that practice. It provides, *“*that whenever hereafter the Master or Commissioner in Equity in this State shall be appointed a receiver of the Court of Equity, and shall accept such appointment, he shall, before he enters upon the duties of such office, duly execute a bond to the Judges of the Court of Equity, with two or more good and sufficient sureties, to be approved of by the court making the order, in a sum equal to twice the value of the estate and effects intrusted to him, conditioned for the faithful performance of his duty as receiver, which bond shall be kept among the records of the Court of Equity, and also recorded by the Register, in a book to be kept for that purpose in every court; and a copy of said bond, certified by said Register, shall be delivered by him, on demand, to every party interested in said funds; and such party, or parties, is and are hereby authorized to institute a suit at law on such certified copy.” (fee.

Before the passage of this Act, the Master and Commissioners of the court were, under the usage before refered to, habitually appointed by the court to do the duties required of a receiver, in cases where it was necessary and where another suitable person could not be conveniently obtained, without requiring the security provided for in the Act. But the case under consideration furnishes two examples in which a Commissioner has been appointed to discharge these duties, without having been required to give the security, and there are doubtless many others, and it has been insisted, in the discussion of this case, that the Act did not divest the court of the authority to appoint the Commissioner receiver .under the usage as before, and that the security required was intended to be in aid of the official bond, and that consequently the Commissioner, in that character, was bound to obey the order of the court.

I do not know how to meet this argument better than by re-fering to the terms of the Act itself. Before that, the Commissioner had been required to perform the duties of receiver without giving security, and the Act, if it means any thing, provides that he shall no longer perform these duties without giving the security. That if he shall accept such “appointment” ! — not the office of Commissioner, but of receiver, — “ he shall, *182before he enters upon the duties of such office” (not of Commissioner but of receiver,) “duly execute a bond” <fec., and if the legislature had intended to declare that the Commissioner should no longer discharge the duties of receiver, I am at a loss for language that would more clearly express the idea, qualified only by the condition that he should give bond and security.

The fact that the court made the orders under which Elliott took possession of the assets, is relied on, as refering these duties to his office of Commissioner of the court, and therefore his sureties are liable.

I have before shewn, that the Legislature has declared that they shall not appertain to that office, and that they properly appertain to the office of receiver; and although the orders under which he acted do not entitle him *receiver,*the omission to do so neither imposes on him the duty, or authorizes him to act in that character, without giving the security. Any other construction would operate as a repeal of the Act. Leave out the title of receiver, and according to the construction contended for, you may impose on the Master or Commissioner all the duties of receiver.

But it has been said, that the act has been done under the authority of the court, and it has been asked in argument, whether the parties will be permitted to suffer loss by these means, and I fear that in our sympathy for suffering suitors, we have lost sight of the rights of Elliott’s sureties. But I will ask in reply, whose fault is it that such orders were made ? Will any one who has examined the Act, believe that any Chancellor who ever presided on this or any other bench would have made such orders without requiring security, if it had been asked by any one of the parties or their solicitors ? It is too clear to admit of a question, and the necessary inference is, that they were made by the assent of the parties. That ought not to be permitted to operate as a wrong to Elliott’s sureties.

The history of the Act of 1821, alluded to in the circuit court decree, has been refered to, as furnishing a clue to the interpretation of the Act, and parts of several of the subsequent clauses have been relied on as shewing that, under the usage of the court, the commissions of the Master or Commissioner were doubled or trebled, in passing through the hands of a receiver, instead of the Commissioner or Master, and the Act was mainly intended to correct the abuse of their powers over the subject. I concede *in extenso*the rule, that to ascertain the true meaning *183of an Act of the Legislature, it is admissible to look into the history of the times at which it was passed, to ascertain the evils that were intended to be remedied, and to examine into not only all the clauses of the same Act, but all other Acts on the same subject, and to read them as one Act. But that is only admissible where the terms employed are of doubtful import, or where the provisions of the same Act are inconsistent, and never can be resorted to to contravene a plain and positive enactment. Does any one doubt what the Legislature meant when they said that no “Master or Commissioner in Equity shall be appointed a receiver,” without giving bond and security *7*No ! that would control the usage, and-you look in vain through this Act to find any thing inconsistent with it.

I come now to the consideration of a question which I regard of much more importance, because its decision is calculated to operate not only upon the particular case, but upon a numerous class of contracts. It is, whether the sureties of Elliott are liable for the money received by him on Dr. Whit-ridge’s bond.

The most prominent condition of Elliot’s official bond is, that he shall *faithfully discharge the duties of the office of Commissioner in*Equity, *during his continuance in office.*The duties to be discharged are those which appertain to the office, as prescribed by positive enactments of the Legislature, and the usages *of the*court. Amongst them, and immediately applicable to this question, the Act of 1821, befor-e refered to, requires that he should deliver over to his successor “all the papers and documents appertaining to his office, together with all the moneys, bonds, notes,” <fcc. “ within twenty days after the date of the commission of such successor.” Dr. Whitridge’s bond certainly appertained to the office of Commissioner, and was in the possession of Elliott at the time his office expired. He neglected to deliver it over to his successor within the time prescribed by the Act, and I concede, at once, that this was a defalcation for which his sureties were responsible. But the question-arises, what injury did the legatees of Dr. M’Leod sustain by this neglect'? If the sureties had been immediately sued on their bond, they, the plaintiffs, might have been compelled to submit the condition to a jury to ascertain the damages, and if the sureties had held up the bond in court ready to be delivered to the plaintiffs, or had furnished evidence of its existence, and pointed out the way of recovering the amount', what jury would *184have given more than nominal damages against the sureties *1*Suppose the bond unpaid, and the sureties, even now, sued upon Elliott’s official bond, and, on submitting the condition to a jury, they were able to shew that Dr. Whitridge was abundantly able to pay his bond, and that, notwithstanding the great delay, there was no obstruction to a recovery against him, would the jury, in the wide discretion which they are entitled to exercise in questions of damages, find against them the whole amount of Dr. Whitridge’s indebtedness to the estate of M’Leod, still leaving the legatees to recover the same amount from him, with interest on both sums from the time the b ond was due ? And yet this court, in the exercise of Chancery powers, are, we are told, authorized to sit in judgment to ascertain *the damages,*admitting no claims to mitigation.

But it has been said, that this bond has been paid to *Elliott,*and therefore his sureties are liable. That was after the expiration of his term of office, and the authority to receive it cannot be traced to any connexion with his duties while in office. It is true, that the bond was made payable, in the usual form, *to him and his successors in office,*but these terms, - in themselves, as well as the nature of the transaction, point to the successor as the person entitled to receive the money after Elliott went out of office. And again it is said, that his possession of the bond after he went out of office, authorized Whitridge to pay him the money; and cases have been referred to, to shew that possession of a bond- or note is *prima facie evidence*of authority to receive the contents. Take that for all it is worth— no case can be found in which it has been even surmised that a debtor would be protected in paying money due on a bond or note, to one whom he knew was not entitled to receive it, although he might be in possession of the bond or note. Now, the Act of 1821 is a public Act, which every one is bound to know, nor will ignorance of it be received even as an extenuation. That Act required that Elliott should turn over the bond ‘to his successor within a limited time, indicating, as clearly as language can, that his power over it, and his right to receive the *money,*were *at*an end ; and in legal eifect operated as a notice to Dr. Whitridge, as effectually as if the whole Act had been stamped on the bond in capital letters. The true *question*then, is, whether the sureties, who were not in the way to know, and will not be presumed to know, that Elliott had the bond in his possession, or Dr. Whitridge, who paid the money to him, *185knowing that he had no authority to receive it, shall lose the money.

I have before remarked, that Elliott’s receipt of the money could not be traced to any connexion with his duties during his continuance in office. His office ended, and his liability attached, when he neglected to deliver over Whitridge’s bond to his successor within the time prescribed by the Act; and it will be difficult to find any principle or *dictum*by which his sureties would be held liable for any act done by him afterwards. He had ceased to be commissioner, and was acting *sui juris,*and if in this case the Act be referred to his powers as commissioner, he might, if alive, go on and execute every order of the court made during his continuance in office. If such a principle be established, the sheriffs of the various districts in the State might go on after the termination of their offices, and enforce and collect the executions in their offices, on the responsibilities of their sureties; and so of clerks, ordinaries, guardians and others acting in a fiduciary character, who are required to give bond and security for the faithful discharge of their duties. Having once assumed their offices or duties, their sureties would remain liable in all time, for any act they may have done or omitted, under color of their power or authority ; notwithstanding their offices had terminated, or their trusts had been discharged. On this point, I may rely with confidence on the judgment of the court, as to the liability of Elliott’s sureties, for the proceeds of the sale of Folly Island, under the order of the court in *ex parte*Mary S. Darby *et al.*That order was made whilst Elliott remained in office ; and because he sold the Island afterwards, and without authority, it is held that his sureties are not liable for the money received ; and I confess that I am utterly unable to distinguish between the cases.

It is now received as a maxim, that sureties are favored in all matters of doubtful right. I agree, that generally, they are not discharged by the mere passive neglect of the creditor to enforce his rights against their principal; yet, there are numerous instances in which active diligence is required, of which the Law merchant furnishes some examples. According to that, the holder of a bill of exchange, or promissory note, must demand payment, and if it is dishonored, give notice to the indorser, who stands in the relation of surety, within a limited time, to entitle him to recover against the indorser; and I am much inclined to think, that a rule founded on the same principle might *186be usefully applied to cases like the present. Here the legatees of M'Leod must have known that Elliott had possession, of the bond of Dr. Whitridge, for they were' parties to the proceeding. They might have compelled him to turn it over to his successor, upon a rule to shew cause, or recovered it in an action of deti-nue. The sureties, as before remarked, were not in a situation to- know that such a bond existed, nor had they any clue by which to direct their enquiries in relation to it. Elliott might have concealed it from them, in despite of all their enquiries, and it would have been impertinent in them to file a bill for a discovery, on the mere supposition that he had violated -the duties oí his office, and thereby exposed them to loss; and now, after a lapse of near twenty years, when all hope of their being reimbursed is lost, they are called on to pay a large sum, which, if lost at all, has been lost by the negligence of the parties claiming.

Johnston, Ch. and Butler and Frost, JJ. concurred in so much of this opinion as declares that the sureties of Elliott are not liable for the money which he received on Dr. Whitridge’s bond.