60 Ala. 328 | Ala. | 1877
(After stating the facts.) — The question presented, decisive of the cause, is, whether the Court of Chancery could properly commit to Pierce, as register, the duty of collecting and receiving money, on choses in action, which were under its control, and whether a liability for his fidelity in this respect falls within the obligation ana condition of his official bond. We lay no stress on the fact that, in the order charging him with the duty, he is styled as special receiver. As register, he is charged with the duty, and it is from the nature and character of the duty, and not from this designation, that we must determine whether he is subjected to liability in his official capacity.
It is the general principle of the common law, that a public officer, and the sureties on his official bond, are responsible for his acts done by virtue, or under color, or by means of the office he holds.- — Burge on Suretyship, 49. The principle is declared, and extended by our statute beyond nonfeasance, or misfeasance, to malfeasance under color of office. Code of 1876, § 179; Governor v. Hancock, 2 Ala. 728; McElhaney v. Gilleland, 30 Ala. 183; Kelly v. Moore, 51 Ala. 364. But, for acts not within the line of official duty and authority, not under color of office, he may incur personal, not official responsibility; and in that personal responsibility, the sureties on his official bond are not involved. — Addison on Con. § 1117 ; 1 Chit. Con. 762. The principle at common law was, also, that when the suretyship related to a particular office, it extended only to such things as were included in the office when the bond or engagement was entered into; and the surety could not be made answerable for additional duties subsequently imposed. — 1 Chit. Con. 765; Morrow v. Wood, at the last term. Sureties, like all other parties, have the right to stand upon the contracts they make ; and there can be no change, no enlargement of their liability, without their consent. This rule of the common law is now changed; or, rather, the condition and obligation of official bonds have been enlarged, so as to embrace not only performance of the duties required by law when the bond is executed, but such as may be required by a law subsequently enacted. It is, however, only by a subsequent law, and not by the act of individuals, or the judgment or decree of any court, that additional duties may be imposed, or existing duties enlarged, involving in liability the sureties on his official bond.
In our system of chancery practice, the duties of a registrar, and of a master in chancery, as they were known in the practice of the English Court of Chancery, are blended, and
A receiver is defined as an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the court that either party should hold it. He is an officer of the court, and the property or funds in his possession are regarded as in the custody of the court. — High on Beceivers, § 1. His functions and duties are entirely distinct from those of a master, or registrar in chancery, in the practice of the English courts, and from the ordinary duties and functions of the register in our system of practice. The rule in England was, that a master in chancery could not be a receiver. There are many reasons rendering the two offices incompatible here, though sometimes the register has been charged with duties ordinarily appertaining to a receiver. The fund paid into court may be small, and placing it in the custody of a receiver would involve its diminution in costs. There would often be much difficulty in procuring a suitable person, for the small compensation it would yield, to take charge of it, and give a bond as receiver. In such cases, there being no serious incompatibility in_ duty, the register, who is to act under the eye of the parties in interest, and under the immediate supervision of the court, and who has already given bond for his fidelity, has been required to perform the duties which ordinarily devolve on a receiver — the holding of the funds, or, if deemed advisable, loaning them, until the court shall decree to whom they must be paid. It was in view of this practice, the order appointing Pierce, and denominating him special receiver, by virtue of his office as register, was made.
There was not, as is argued, a new office created by the order of the court, and attached to the office of register, nor were the functions and duties of register and receiver blended. The funds were in court, in the custody of the predecessor
The sureties on an official bond of an officer of court are answerable for the performance* not only of the duties which the statutes may expressly declare he must perform, but also such duties as by the long and established practice of the court he has been required to perform. There is no statute expressly declaring that a register may receive money in satisfaction of a decree rendered by the court; yet, it is the practice for him to receive it, and authority to receive may be implied from the requisition on him to give notice of its collection. So, it is contemplated that he will receive money paid into court, and a summary remedy is given against him and his sureties for its recovery, if he fails to pay it over.— Code of 1876, § 3378. The only duty Pierce ever performed under the order of court, was that of receiving money, which of necessity bad to be paid into court; a duty peculiarly appertaining to the office of register, and not to a receiver. In the character of receiver, so far as that character could in any event be regarded as devolved on him, he performed no duty; and for the money he received we have no doubt of the liability of the sureties on his bond as register.
It is not necessary to examine separately the several rulings of the Circuit Court, for we are satisfied that there is nothing in them prejudicial to the appellants. Affirmed.
