Year: 1861

| Decisions Of the Supreme Court of ths


cember Term. 1850.
| Smith and others Woods and others.


The plaintiffs are the heirs at law and next of kir


of E. Howard decd. By proceeding in the County
\ Court of MONTGOMERY which seems to have beer


regular, certain real estate and slave the prop
| erty of the said Howard, was decreed to be sold


on the petition Of the heirs and next of KIM at the


December session, 1858, of said Court and William


Rogers, the then Clerk of the Court was by an or
| der of the Court appointed commissioner to make
| the sale. At the March session, 1859. Rogers the
| clerk and commissioner, made his report to the


Court, showing that he had made sale Of the prop
erty pursuant to the decree that the proceeds of
sale amounted to 6340 90, for which he had taken


the notes of the respective purchasers, with


lty as directed In the year 1859 Rogers died; be-
fore his death he had receive ed several sums of


money from the purchasers at said SALE in part pay


ment of the notes executed to him commissioner.
Part OF the money thus received by him, he ac-


counted for and paid over. but at the time of his


death the sum of $500 had been retained by him
wholly unaccounted for. . r
To recover this money the plaintiffs presented


petition to said County Court against Woods the


administrator of Rogers and the suretes to the Off


cial bond executed by Rogers as commissioner


praying for Judgment or decree against them for.
the amount Rogers was in arrear.


The defendants demurred to the petition, and the
demurrer wa allowed by the Judge of the County
Court and the petition was dismissed. I...1


Inc proceeding seems TO nave been treated
the nature of bill in equity, and, in this view the
jurisdiction was thought to belong to a Court of
Chancery and not to the County Court


The proceeding adopted was a more formal ons-
perhaps than was required; single motion would
possibly have been sufficient; STILL we are of opin-
ion that the mode of proceeding by petition was
regular.


By the Code (sec 42OI) the CountyICourt clearly
possessed the Jurisdiction make the SALE and by
sec. 4204 it is expressly vested with all the power
a.
of the jurisdiction" thus conferred; and by sec.
42e4, the County Court is vested IN of concur
rent jurisdiction, with all the incidental powers
possessed by court of equity for the purpose of
efectuating the jurisdiction conferred upon it in
the several cases enumerated In sec. 420I


This being so, it necessarily follows that in the
case before Us, the jurisdiction being concurrent
with the Chancery Court, the power and authority
Of the County Court was as ample in the premises
as of Court of Chancery.


But again, the money was in view of the land re-
celved by Rogers in the two-fOld capacity of clerk
and commissioner; and thus regarded, the case is
within the spirit and meaning of see 4043, which
makes it the duty of all clerks, upon application at
his Office by the party entitled his agent attorney,
to pay over without delay any money or property
Judgment order of the Court, or by virtue of his
Office. And by sec. 4044. failure to do so is not
only declared misdemesnor, but likewise subjects
the delinquent clerk and his sureties to judgment



in terms that a special commissioner appointed by
the Court to sell property to receive and collect
funds is in all cases liable on motion in the same
way, and TO the same extent as the clerks Of the
Courts. See sec. 3608.


We do not find that the personal representative of
q deceased clerk or special commissioner is made
liable on motion by any express provision Of the
code, but it would perhaps follow, by the proper
construction of the various provisions of the CODE
that he would be so liable, together with his
sureties.


By sec. 1926 (ch ii, art. ~ it is provided that
the remedy by motion given by this article TART y
will be beth for and against the personal repre>
sentatives of the deceased parties.n This provi-
sion might at first view, from its justapostion
and terms, to be restricted to the class of motions
in art. 4; but SUCH think, was not |
the intention. There would be no sense in such |
discrimination.


The rule laid down in some of the earlier cases,
that the remedy by motion given by statute against
delinquent officer will not lie against his personal
unless it be so declared in terms is
a very narrow one, and is violative of the general
principle that in civil the personal represen-
tative takes the shoes of the deceased party is sub
ject to the same liabilities, and may be proceeded /
against in the same forms and modes.


We incline to the opinion, therefore, that upon
sound general principles and analegies of law. the
remedy by motion will lie against the personal rep
resentative of delinquent officer wherever it is
given against the officer himself though the statute
NAV not in express terms, extend it to the former
This results as an inference of law, upon general
unless, from something in the statute,
the intention to restrict the remedy to the officer
in exclusion of the personal representative be ap
parent.


In this view, tke proceeding by petition may,
without any prejudice to the rights of the defend
.nts and likewise without real incongruity, be
treated as q motion.


We will SO regard it and render judgment ac-
,ordingly.


Judgment reversed. MCKINNEY. |