Pritchard v. Oldham, 53 N.C. 439, 8 Jones 439 (1862)

June 1862 · Supreme Court of North Carolina

53 N.C. 439, 8 Jones 439

EASOM PRITCHARD et al v. ALLEN OLDHAM.

Where a person was appointed by court á 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 ■ndeed, there wer e any.

This was a 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.

The defendant had been appointed a commissioner by the County Court of Orange, to sell for partition, a certain negro slave under certain proceedings bad in that Court, in the names of the plaintiffs. i The slave was offered for sale, and first bid off by Easom Pritchard, one of the petitioners for the: sale, but be failing to give bond for the whole sum bid by him, the slave was put up again and cried off to one J oily at the price of $1282. The case states that a respectable gentleman told the defendant that Jolly was totally insolvent; that after he bid off the slave, he, J oily, proposed to- take the slave-to Pittsborough, where he lived, and in the next week, if he would come to that place, he would give him a bond with1 John A. Hanks and Wesley Hanks. The defendant enquired of Dr. Davis whether a note given by Jolly and the two» Hankses would be good, wbo replied that it would be perfectly so; thereupon, the defendant permitted Jolly to take the slave to Pittsborough. During the next week, defendant went to Pittsborough, 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, negroes purchased out of the State for sale-. The general purchased a negro or two on speculation, sending the reputation of Jolly, at the time, was that he was insolvent y. 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. This matter was specially ^ported by the defendant to the 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, $1282, 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 the plaintiffs.

Phillips and Norwood, for the defendant

Battle, J.

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 the Rev. Code, ch. 31, see. 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 wilful 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 any thing of criminality or even of negligence or unskilfulness 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 ©n a credit of six months, faking 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 Pittsborough before he had given bond and security for the purchase-money; bpt the wrong was repaired as soon as the bond with security was given j for the matter theaa stood as it would have done had the transaction been completed on the day of sale. The sole enquiry then, is, was it negligence in the. commissioner to take the bond which he did, as security for the price of the negro ? In the .case of Davis v. Marcom, 4 Jones’ Eq. 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 wilfully 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. 284, and the references contained in notes 7 and 8 of Chitty’s Edition.

The order of the Superior Court, from which the appeal .is taken, is affirmed. ■ „

Per Curiam,

Judgment affirmed.