Opinion
(June Term, 1862.)
Where a person was appointed by court a commissioner to sell a slave for partition, and the surety taken by him, although reputed good at the time of the sale, turned out to be insolvent before the note could be collected, it was Held, that an attachment for a contempt for not paying the money into the court, under a rule for that purpose, was not a proper remedy, if, indeed, there were any.
RULE on the defendant to show cause why an attachment for a contempt should not be issued against him, which came up from the county court of Orange, and was heard before Howard, J. (440)
The defendant had been appointed a commissioner by the county court of Orange, to sell for partition a certain negro slave under certain proceedings had in that court in the names of the plaintiffs. The slave was offered for sale, and first bid off by Easom Pritchard, one of the petitioners for the sale; but he failing to give bond for the whole sum bid by him, the slave was put up again and cried off to one Jolly at the price of $1,282. The case states that a respectable gentleman told the defendant that Jolly was totally insolvent; that after he bid off the slave he, Jolly, proposed to take the slave to Pittsboro, where he lived, and in the next week, if he would come to that place, he would give him a bond with John A. Hanks and Wesley Hanks. The defendant inquired of Dr. Davis whether a note given by Jolly and the two Hankses would be good, who replied that it would be perfectly so; thereupon the defendant permitted Jolly to take the slave to Pittsboro. During the next week defendant went to Pittsboro, and took the bond of Jolly and John A. Hanks as principals, and Wesley Hanks as surety. The case further states that Jolly and John Hanks were partners in merchandising and trading generally, and now and then purchased a negro or two on speculation, sending the negroes purchased out of the State for sale. The general reputation of Jolly, at the time, was that he was insolvent; that of John A. Hanks was that though he had property about him, he was greatly embarrassed and doubtful; but as to Wesley Hanks, that he was worth $10,000 or $12,000, principally in real estate; that he was economical and discreet, and as safe as any one for the amount of the note. A week or two after the note was given, Jolly carried the slave out of the State and sold him. The note was, on falling due, put in suit, and a judgment obtained without delay, but the parties had all, in the meantime become insolvent, and the execution returned unsatisfied. The matter was specially reported by the defendant to the (441) county court of Orange, and upon a notice to that effect duly served on the defendant, a rule was obtained and made absolute for him to pay into the office of the clerk of Orange County court the amount of the bond, $1,282, with interest, or that an attachment for a contempt should be issued against him. From this ruling the defendant appealed to the Superior Court, where the order below was reversed, and the plaintiffs appealed to this Court.
Graham for plaintiffs.
Phillips and Norwood for defendant.
It cannot be doubted that a person appointed by a decretal order of a court, in the progress of a cause, a commissioner to sell property, and to make a report thereof to the court, is either an officer or a person against whom, in a proper case, an attachment may issue under the provisions of Rev. Code, chap. 34, sec. 117. If, then, the defendant in the present case had collected the money for which the slave mentioned had been sold, and had disobeyed an order of the court to pay it into the clerk's office, an attachment against him would have been proper, because a willful disobedience to such order would have been a contempt of the court. But as he had not collected the money for the reasons stated in his second report, was there anything of criminality or even negligence or unskillfulness in the discharge of the duties of his appointment to justify the court in issuing the summary process of attachment against him? We think not. He was ordered to sell the slave in question on a credit of six months, taking a bond and good security for the price. He did right in offering the slave for sale again, after Pritchard had refused to comply with the terms of the sale. He did wrong, and ran a risk of loss, by permitting Jolly to take the slave to Pittsboro before he had given bond and security for the purchase money; but the wrong was repaired as soon as the bond with security was given; for the matter then stood as it would have done had the transaction been completed on the day of sale. The sole inquiry, (442) then, is, Was it negligence in the commissioner to take the bond which he did as security for the price of the negro? In Davis v. Marcom, 57 N.C. 189, we held that where an administrator was ordered by the court to sell slaves for distribution, on a credit, taking bond with sureties for the purchase money, he was only responsible, in respect to the sufficiency of the bond, for willfully or negligently taking such sureties as were not good or such as he had not good reason to believe were sufficient. As we are not aware of any rule of law which holds a commissioner appointed by the court to sell property to a stricter accountability than what is applicable to administrators, that case must govern the present. Here the commissioner had very good reason to believe that the bond which he took was sufficient. Dr. Davis, a respectable gentleman, who resided in the neighborhood of the obligors, said the bond would be good, and it was proved that at the time when it was given, though one of the principals was reputed to be insolvent and the other doubtful, yet the surety was worth $10,000 or $12,000, principally in real estate, and was regarded as economical and discreet, and as good as any person for the amount of the bond.
Under these circumstances, it may well be doubted whether the defendant can be held responsible for the loss of the purchase money of the slave in any form of action, but certainly he cannot be so held in a mode of proceeding which is somewhat criminal in its nature, and which, it would seem, therefore, ought not to be adopted unless there were something of criminality in the person against whom it is directed. See 4 Black. Com., 484, and the references contained in notes 7 and 8 of Chitty's edition.
The order of the Superior Court is
PER CURIAM. Affirmed.
(443)