Broughton v. . Haywood , 61 N.C. 380 ( 1867 )

I concur in the conclusion that the defendants are liable to judgment for the money on motion, but I am of opinion also that the money was received "by virtue of his office," and that the defendant, Haywood, and his sureties might have been subjected by suit on his official bond.

The slaves were sold for the purpose of partition, and the object of directing the clerk to sell on six months credit, taking bond and security with interest from date, was not to make an investment, but to enhance the price, by enabling those who did not have the cash in hand to become bidders, so as not to confine the bidding to those who had the cash.

The clerk and master made the sale according to his order, on six months credit. When asked if those who had the cash were not in a condition to give bond with security, were at liberty to bid, he told them that as a matter of course, their bids would be accepted. Suppose he had refused to take such bids; evidently the number of bidders would have been diminished, and the purpose of enhancing the price would have been defeated. So, it seems to me that the put the proper construction upon his order to sell. He thought so, for his report set out that certain bidders paid cash. Had he refused cash bidders, he (386) would have been amenable to the charge of "sticking in the bark," to the prejudice of those for whom he was acting, just as much as if he had made a cash sale, and thereby excluded from binding all who were not prepared with the money; for it was known, many negro-traders were prepared to pay cash, but could not give security; and the order was shaped so as, by its proper construction, to include both classes of bidders. I think, therefore, that in making the sale on six months credit, with the understanding that all who chose might pay the cash instead of giving bond and security, and also in receiving the money, the clerk acted in conformity with his order, and received the money by virtue of his office, and his default was in not paying it over when it was called for.

For what reason has the sale to be made on six months credit, taking bond and security with interest from date, and why should the clerk and master be held to the letter, and not be allowed to exercise his judgment as to the true construction of the order of sale? Was it because he was considered unfit to be trusted with the money? No! For his official bond secured that. Was it for the sake of making $30 interest on $1,000? No! For an investment of the fund was not in contemplation of the court. So the object was to enhance the prices by increasing the number of bidders. That was best promoted by letting in cash bidders as well as credit bidders, which more than compensated for a loss of $30 interest, to say nothing of the delay and expense of collection. Thus the gravamen is, that in this instance the funds have been misapplied. But for that it would have been "all right." I think the case is like that of an executor or administrator who sells on six months credit, as required by the statute, but allows some bidders to pay cash.

I am also of opinion that when a clerk takes a bond payable say six months after date, if the debtor tenders the money at the day, the clerk is bound by the contract to receive it, and is not required to wait (387) for an "order of collection." In other words, an order to collect is necessary, not to give the clerk authority to receive the money when a bond falls due, but to instruct him to bring suit on the bond, and compel payment. Consequently all such payments are received by himvirtute officii, and accountability is secured by his official bond.

PER CURIAM. There is no error.

Cited: S. v. Morrison, 63 N.C. 510; Greenlee v. Sudderth, 65 N.C. 473;Brown v. Coble, 76 N.C. 393; Varner v. Arnold, 83 N.C. 209; Thomasv. Connelly, 104 N.C. 349; Smith v. Patton, 131 N.C. 398; Hannah v.Hyatt, 170 N.C. 638; Thomas v. Carteret, 182 N.C. 390. APPENDIX

[By direction of the Court, the reporter adds to this number the address delivered to the bar attending the Circuit Court of the United States for this district, by his Honor the Chief Justice of the United States, upon the first day of his attendance during the term in June, 1867;and also an opinion by the Circuit Court upon an interesting case which came before it during that term.

Upon Thursday, 6 June, their Honors, Chief Justice Chase and Judge Brooks, with a numerous attendance of the bar being present, the Chief Justice read the following address:]

GENTLEMEN OF THE BAR: Before proceeding to regular business I think it proper to address a few observations to you.

For more than four years the courts of the Union were excluded from North Carolina by rebellion. When active hostilities ceased in 1865, the National military authorities took the place of all ordinary civil jurisdiction, or controlled its exercise. All courts, whether State or National, were subordinated to military supremacy; and acted, when they acted at all, under such limitations and in such cases as the commanding general, under the direction of the President, though fit to prescribe. Their process might be disregarded, and their judgments and decrees set aside by military orders. Under these circumstance the Justices of the Supreme Court, allotted to the circuits which included the insurgent States, abstained from joining the District Judges in holding the Circuit Courts.

Their attendance was unnecessary, for the District Judges were fully authorized by law to hold the Circuit Courts without the Justices of the Supreme Court, and to exercise complete jurisdiction in the trial of all criminal, and almost all civil causes. And their attendance was unnecessary for another reason. The military tribunals at that time, and under the existing circumstances, were competent to the exercise of all jurisdiction, criminal and civil, which belongs, under ordinary (390) circumstances, to civil courts.

Being unnecessary, the Justices though that their attendance would be improper and unbecoming. They regarded it as unfit in itself and as injurious, in many ways, to the public interests, that the highest officers of the Judicial Department of the government should exercise their functions under the supervision and control of the Executive Department.

At length, however, the military control over the civil tribunals was withdrawn by the President. The writ of habeas corpus, which had been suspended, was restored, and military authority in civil matters was abrogated. This was effected, partially, by the Proclamation of 2 April, and fully, by the Proclamation of 20 August, 1866.

These proclamations reinstated the full authority of the National Courts in all matters within their jurisdiction; and the Justices of the Supreme Courts expected to join the District Judges in holding the Circuit Courts, during the interval between the terms at Washington.

On 23 July, 1866, however, act of Congress reduced the number of the Circuits, and changed materially the Districts of which the Southern Circuits were composed, without making or providing for an allotment of the members of the Supreme Court to the new Circuits;and without such allotment the Justices of that Court have no Circuit Court jurisdiction. The effect of the act therefore was to suspend the authority of Justices to hold the Circuit Courts in the altered Circuits.

This suspension was removed by the act of 2 March, 1867, by which a new allotment was authorized. Under this act the Justices of the Supreme Court have been again assigned to Circuit duties; and the Chief Justice has been allotted to hold, with the District Judges, the National Courts in the Circuit of which the District of North Carolina is made a part.

(391) I am here, therefore, to join my brother, the District Judge, in holding the Circuit Court for this district. It is the first Circuit Court held in any District within the insurgent States, at which a Justice of the Supreme Court could be present, without disregard of superior duties at the seat of government or usurpation of jurisdiction.

The Associate Justices allotted to the other Southern Circuits will join in holding the courts at the regular terms prescribed by law, and thus the National civil jurisdiction will be fully restored throughout the Union.

It is true that military authority is still exercised within these Southern Circuits; but not now as formerly, in consequence of the disappearance of local civil authority, and in supervision or control of all tribunals, whether State or National. It is now used under acts of Congress, and only to prevent illegal violence to persons and property, and to facilitate the restoration of every State to equal rights and benefits in the Union. This military authority does not extend in any respects to the courts of the United States.

Let us hope that henceforth neither rebellion nor any other occasion for the assertion of any military authority over courts of justice, will hereafter suspend the due course of judicial administration by the national tribunals in any part of the Republic.

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