His Honor took a wrong view of the case and made it turn upon an immaterial circumstance without reaching the merits. Whether Windley deposited the money in bank to his own credit or to his credit as clerk made no substantial difference, for in either case the money was equally exposed to be lost by the failure of the bank and could as readily be drawn out by him. In the latter case all he had to do was to add the word "clerk" to his name on the check. True, this fact made it easier to trace the fund and might have become important had Windley failed, but it could make no sort of difference in the event of the failure of the bank.
The point on which the case ought to have been made to turn was this: Is the clerk of the Superior Court liable only as custodian of the (507) money in his office, so as to fall under the principle announced in R. R. v. Cowles, 69 N.C. 59, or is he liable as an insurer of the money under the principle announced in Comrs. v. Clark,73 N.C. 255?
We are of opinion that public policy induced the Legislature to *Page 357 require bonds to be entered into by sheriffs, clerks, and, under the old law, clerks of the county Superior Courts and masters, so liable as insurers of the money. In other words, to impose on them the relation of debtors who are bound to pay in any event.
The words of his bond oblige an officer to "account for and pay over" all money received by virtue of his office, thus making him accountable as a debtor who can only relieve himself by payment.
Our case ought to have been made to turn on the question of payment, of which there was no proof.
Suppose A owes B $500, and in order to pay it deposits in a bank $500 to the credit of B. The bank fails. This is no payment unless A made the deposit with the assent of B or it was recognized by him afterwards. A must pay the debt. Suppose an officer deposits money in bank to his credit as such officer, it is no payment.
This is a hard rule upon public officers. It imposes on them an obligation greater than that of common carriers and innkeepers, who are insurers except as against the acts of God and the public enemies, and does not allow these officers to use money, while it makes them insurers at all events — in other words, debtors.
In the case of common carriers and innkeepers the obligation arises out of a general contract and considerations of public policy. In the case of public officers the obligation arises out of considerations of public policy, and is expressed by the words of their official bonds. Such officers and their sureties are presumed to know the law and to have executed the bond with full knowledge of the extent of the (508) liability which they incur.
As the case goes back for another trial it is proper to notice an objection which, according to the view taken by his Honor, he was not called on to decide, to wit, the sureties insist that they are not liable, for that the money was collected by Windley as commissioner and not as clerk.
It is set out in the statement of the case: "Said Windley, commissioner as aforesaid, was ordered by the court to collect the purchase money and make title to the purchaser," but it appears by the record the order was: "Spring Term, 1873. It appearing to the court that George L. Windley, clerk, has, in obedience to the order made in this case at the last term of the court, sold the property named in the pleadings, which sale was in all respects confirmed. It is further ordered that the clerk collect the purchase money from the several purchasers when due and make title."
The statement of the case must give place to the record, so Windley received the money virtute officii, and the sureties are liable.
PER CURIAM. Venire de novo. *Page 358 Cited: Cox v. Blair, 76 N.C. 81; Wilmington v. Nutt, 78 N.C. 179;McLean v. Patterson, 84 N.C. 429; Smith v. Patton, 131 N.C. 397.
Dist.: Moore v. Eure, 101 N.C. 16.
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