delivered the following dissenting opinion :
By Code, section 326, every clerk of the court, before entering upon the duties of his office shall enter into bond, with sufficient surety to the satisfaction of his court, in the sum of $10,000, payable to the State, and conditioned for the safe-keeping of the records, .and for the faithful discharge of the duties of his office. 'This is imperative, as well as the bond required by the next section, as to taxes on suits, fines and forfeitures. Section 328 is not so, however, but is: “The -several courts may also require their clerks to give bond, with surety, in such sum as the court may •deem sufficient, to cover property or funds which may -at any time come to the hands of such clerks, as -special commissioners or receivers by appointment of the court or any judge thereof.” Section 329: “The failure of any clerk to execute the special bond provided for in the last section shall not subject him to any penalty, but the court may confide the particular *382business to such other person as will give the required security, and in the absence of such bond the clerk and his sureties will be liable, on the regular official bond for all property and money, with which such clerk may be properly chargeable, as special commissioner or receiver.” By section 330, the court is authorized “to require special bonds to meet particular exigences and in a suitable penalty, whenever in its-judgment, the interest of suitors renders it necessary,, subject to the provision of the last preceding section.” That is, if no special bond is given, the liability shall be on ordinary official bond.
In this ease considerable sums of money were received by Cole as clerk from the two former clerks,. Alston and! Stewart, which had been received by them as commissioners for sale of land, or as clerks, acting in this capacity. A larger sum was in his hands at his reappointment, received by himself from like sources-during his previous term, and upwards of $6,000 was-collected by him during his second term on sales made during former term. It may be assumed there was no default as to this during the former term, and it so remained in his hands until after his reappointment succeeding himself, and is the same so far as the question for decision is concerned, as if he has succeeded another and' different party.
The question is, whether these funds thus coming to his hands, and not the result of sales made by him after the new term commenced, shall be chargeable on the general clerk’s bond, or on the new bond given by him as special commissioner, required by section 328?
*383I think these funds are to be charged under the general official bond, and cannot be charged against the parties to the second, or special commissioner’s bond.. The fact that the office bond is only for $10,000, and the commissioner’s bond for $30,000, I think has no bearing on the solution of this question. The court has ample power to protect suitors if deemed necessary, under section 330, as to all funds coming into his-hands as these funds came. If such bond had been taken, that. is a special one for moneys received. irom predecessors, then there could be no question the sureties on the commissioner’s bond would not have been also liable on their bond. But it is expressly provided by the last clause of section 330, such a bond' as is authorized, shall be “subject to the provison of the last preceding section.” This evidently can only refer to the provision following the one providing that a failure to execute a commissioner’s bond, shall not make a forfeiture of office, and the court may confide-the particular business, that is sales, or either as commissioner or receiver, to any other person, who will give the bond, and then adds: “And .in the absence of such special bond, the clerk and his sureties will be liable on the regular official bond for all property or money with which such clerk may be properly chargeable as special commissioner or receiver.”
This means in case he shall act as such commissioner or receiver, and' funds come to his hands, no special bond having been ‘given, then he and sureties will be liable for such funds on general bond; so it follows in case of failui’e to exact a special bond, under-*384section 330 this provision comes into play, and the general bond covers it. I can see no other meaning •or application to this clause, I think the same result would follow from our decisions, however, and this, ■only a declaration in plain terms, of what was the law.
I have carefully examined all our cases cited by my brother, Cooper, and while they do hold the payment of the funds in the hands of a predecessor into the hands of his successor, will discharge the sureties, and that if the funds are in the hands of the clerk, and he is his own successor, no default having occurred, the sureties for the second term are liable for such funds, still none of them have undertaken to fix this liability in eases of funds in his hands as commissioner, on the second commissioner’s bond, in preference to the general official bond. In fact, I think the principle announced, and the theory on which the cases go, require a different holding. In none of the cases cited was this question made.
The old case of Waters v. Carroll, 9 Yer., 102, held that the sureties were liable for funds received •by the clerk from a former receiver, he having himself been appointed receiver, and, ordered to loan the money out. It was held to be in his hands as clerk, because he had done no act in obedience to the order, and had assumed no control over it as receiver. The theory of this holding is, that the duties of clerk and receiver are distinct, and farther, that where money is paid over by a receiver to' a clerk, he receives and holds it as clerk, until he takes it under an order of •court in a different capacity.
*385The case of Williams v. Bowman, 3 Head, 677, held that a clerk under a bond under act of 1849, conditioned “to \ well and faithfully account for and pay ■ over all sums of money that shall come to his hands • as special commissioner, etc., who collected the money ■ after expiration of his term of office was responsible, 'with his sureties for the money.” The theory of this . opinion contravenes, as I think, definitely the view, that sureties on a second bond as commissioner, would be liable to the execution of the sureties on the general bond, if the money had been paid over to his successor. It is, that the special commissioner acts in ; any ease, not as clerk but by virtue of his appoint- ■ ment to make the sale, as would be the case if he were to act as receiver of property or funds in court, ■or to be brought in. Judge McKinney says, page -582, as to the office of commissioner, “its duties do not appertain to the proper functions of the office of ■clerk. The duration of the appointment is not limited ■ by law. This is left to the discretion of the court, -according to the exigencies of the various cases that •may arise.” Again, page 583, as to whether or not 'handing the notes over to his successor would have discharged the commissioner, he says it was unnecessary to decide, as he did not do so, but he adds, “if he had done so, the court might doubtless have appointed his successor to have finished the execution of the trust.” While nothing is decided on the question now under discussion, what is said goes definitely on the theory that the clerk is not special ' commissioner .in any case, except where he is appointed as such, *386or where he is appointed by the court to 'perform the duties of such a commissioner, without being in terms named such, as said by Judge Cooper in Buford v. Cox, 3 Lea, 523. It is enough that the clerk and-master was ordered to perform the duties, and that the duties were not then pertaining to the offioe of clerk and master proper. “This would make him, as to these duties special commissioner or receiver.”
Without going over the cases cited, Bowen v. Evans, 1 Lea, 107; Smalling v. King, 5 Lea, 585; Yoakley v. King, 10 Lea, 67, 73, it suffices for this argument, to say, while it. is held that payment to successor, having the funds in hand without default, makes the sureties on clerk’s bond liable for these funds, the question whether this liability shall be fixed on the sureties on second bond as commissioner, over the sureties on the general official bond, is not raised, discussed or decided. By Code, section 805, it is now provided in all cases where an office is vacated, “ all books and papers, property and money belonging or appertaining to the office, shall be handed over to the qualified successor.” I concede too, that if the successor receive it in the capacity' of commissioner, than by virtue of section 771, et seq., the bond would cover it. But the question is, does he receive this money as commissioner under the fair construction of the Code, or in accord with the whole theory of the question as found in our decisions? I think not, but that he receives the money virtute offieio, by virtue of his official position, which is that of clerk. To this office is added, by our law, a bond to be given as such officer, to cover *387all acts as special commissioner or receiver, that he may be ordered or called on to perform during his term of office. . But an appointment by the court or an order-to perform the. function of commissioner or receiver,, or the actual performance of these duties, is absolutely necessary to create the liability. In case no such order, or the receipt of the money is not while acting in such capacity under such an order, then it is received by him a.s clerk, and the liability is solely on his general 'bond, unless a speci d bond lias been taken under section 330. This is in accord with all our cases, from the 9th Yerger ease down to the present, and contravenes none of them.
The case of Waters v. Carroll presents the point clearly, lor there the clerk received the money from a former receiver, and was by the court appointed receiver to loan out the fund. He failed to loan it, and his sureties as clerk wore held liable because he did no act under the appointment as receiver. So in this case, he receives the money, or it may be property, as clerk by law, by virtue of his appointment or election to his office, and holds it in that capacity, until he is directed to do some act in the other capacity of commissioner or receiver, or does-such an act, and thén all such acts are covered by the commissioner’s bond. The opposite conclusion can only be reached by holding that he becomes an official commissioner and receiver for the term of his office, by virtue of appointment as clerk or clerk and master; and this is rebutted by all the provisions cited. The language of section 328 is not impera*388tive- that such a hond shall be taken, and in connection with section 329, leaves it clearly discretionary with the court whether it shall be done at all. That ■section provides for the appointment of any other party, to perform these duties, thus indicating the bond is for acts to be performed in the future. .
Suppose the clerk had given no special commissioner’s bond, and the money had been paid over by '■'Stewart and Alston to him, would he not have received it as clerk, and been liable on ’general bond? No one .could doubt this. It is equally clear under .•section 805, as clerk he was entitled to demand and ¡receive it, and as he could be clerk without a commissioner’s bond at all, it follows that by law. the ■one party was bound to pay, and the other entitled to receive as clerk. It might be he could not have received it as ’ commissioner, because it may be, another may have been appointed to perform that function in that office.
This theory is further supported by the language ■of section 328, that the bond shall be taken “ to cover property or funds which may at any time come to the hands of such clerk as special- commissioner •or receiver, by appointment of the court or any judge thereof. If the statute had stopped at the words “come to the hands of the clerk as special commis.sioner,” etc., it might have served better to have supported- the conclusion sought to be maintained, but when it is added “as special commissioner or receiver by appointment of the court, it is seen the liability -does not ¡[attach by reason of his office only, but to *389raise it there must be a special appointment by the court, in the sense of. our decisions, and then all moneys or properties received under such special appointment, either as commissioner or receiver, are cov-vered by the,, bond required.
In accord with this theory, it was ' held in the case of. Tanner v. Dancy, 4 Heis., 483-1-5, that on failure to pay over funds in his hands to the successor, the former clerk was liable to judgment on motion, or even by the action of the court alone,' the judgment to be in the name of the clerk and master. Judge Nicholson, in delivering the opinion, says, page 485 : “ The object of the proceeding is to have the funds which the former clerk and master was withholding from the office, paid into the office where they belonged. It was therefore proper to enter up-judgment in the name of the clerk and master who-was the rightful custodian of the funds.” This was a case where the fund was in the hands of the former clerk as commissioner, it being proceeds of a sale of land ordered to be sold by the court.
For these reasons, I think, all funds not derived from sales, or from some act performed under appointment of the court, or in performance of duties of commissioners during the official term, are covered by the official bond, or may be covered by a special bond under section .330, but can never be held to be covered by the special- commissioner’s -bond under the facts in this case. It may turn out a hardship in this particular case, but in general the bonds will be found sufficient — at any rate the law gives ample means *390of securing all parties under section 330, and if more is required, it is ior the Legislature to apply the remedy, not this court.
The principle of this opinion excludes the $7,000 and upwards item, the first in the account, where ■the money had been collected during the first term, -with the other items received from Stewart and Alston.
It does not exclude the last item of upwards of •■$6,000, where the sales had been made before reappointment, but money collected afterwards. This act ■of collection of sale money is the act of a special •commissioner, and may well be referred to that character, he collecting it necessarily either ■ in such capacity, and probably under decrees of the court in most pases. It is like the case in 9th Yerger, where •clerk was ordered to loan out the money as receiver. If he had done any act under that order he would •have been responsible on his bond as receiver, and not as cierk:' He could not in my judgment receive money from a former clerk or term except in his ■character of clerk, and this is either covered by his general bond, or may be by a special bond under .section 330.