#### State on relation of Mrs. J. C. ALSTON, Guardian, v. B. B. MASSENBURG, LUCY H. MASSENBURG, et al.

(Decided December 22, 1899.)

Clerk’s Bond — Receiver—Loan of Fund.

A Clerk of the court, appointed receiver of infant wards’ estate, by the court, with direction in the order “to collect all moneys due ■them, to secure, loan, invest and apply the same for the benefit and advantage of the said infants, under the direction and subject to such rules and orders in every respect as this court may from time to time make in regard thereto,” receives the fund and loans it out upon note and mortgage. The fund is partially lost by defect of title, and the Clerk’s bond is sued by the guardian. The jury answered, “Yes,” to the following issue: Did B. B. Massenburg, Receiver, in lending the money of the infant ward use the discretion wnich an ordinarily prudent business man would use in the investment of his own funds? Held, the receiver is not liable for the loss.

Civil ActiON upon the official bond of the defendant B. B. Massenburg, Clerk of Eranklin Superior Court, who had been appointed receiver of the estate of the infant wards of plaintiff, tried before Moore-, J., at January Term, 1899, of the Superior Court of said County.

Upon the verdict of the jury in response to the issues submitted, both sides claimed the judgment of the Court. Judgment was rendered in favor of plaintiff, and defendants excepted and appealed.

Mr. F. 8. Spruill, for appellant.

Messrs. P. H. Cooke, and W. M. Pearson, for appellee.

MoNtgomKRt, J.

This action was brought by tire plaintiff against the defendants to recover1 of them an- amount of money on the alleged ground that the defendant Massenburg who, *583while Clerk of the Superior Court of Eranklin County, bad been appointed receiver of the estate of Willie Waugh, the plaintiff, had invested the money of the estate as such receiver without the advice of the Court, and that the money had been lost through the negligence of Massenburg in not taking proper security. The defendants admitted that the defendant Massenburg had received a certain amount of money .belonging to the estate of Waugh, but not as much as was set out in the complaint. But they insisted that the other defendants, who were sureties on the official bond of Massen-burg as Clerk, as aforesaid, were not liable for the acts of Massenburg as receiver. And for a further defense, the defendants averred that .Massenburg as receiver invested the money of the plaintiff and used due care in making the investment, and that the loss which has been caused to the plaintiff was not caused by Massenbnrg’s negligence. The following issues were submitted to the jury:

1. Was the plaintiff, Alston, the guardian of Willie Waugh at the time this action was instituted %

2. What amount of money did the Clerk, Massenburg, receive as receiver of the fund belonging td Willie Waugh ?

3. Did Massenburg, Receiver, in lending the money of the infant ward, use the discretion which an ordinarily prudent business man would use in the investment of his own funds ?

The jury responded to the first issue, “yes,” to the second issue, “$271,” and to the third issue, “yes.”

The plaintiff moved for judgment upon the ground that the order set out as Exhibit “A” in the answer did not authorize and empower the receiver to lend the money at all and that the loan was ultra vires, and therefore in case of loss the receiver would be required to make the same good, even though the jury had found the third issue “yes.” The Court, being of opinion with the plaintiff, granted the motion and *584signed tbe judgment set out in tbe record. Tbe defendant excepted and appealed.

Exbibit “A” referred to was a judgment and order made by Judge Whitaker at January Term, 1891, of Eranklin Superior Court, and is in tbe following words:

This cause coming on to be beard at this term of tbe court before tbe undersigned, Judge presiding at this term of said court, and being beard upon tbe foregoing petition and exhibits attached, it is considered and adjudged by the Court necessary that a receiver should be appointed, for tbe reasons and purposes set forth in said petition and exhibits. It is therefore adjudged by tbe Court that .B. B. Massenburg, Clerk of this court, be and be is hereby appointed receiver, to take possession of tbe estate of said infants, and to collect all moneys due them, to secure, loan, invest and apply the same for tbe benefit and advantage of the said infants, under tbe direction and subject to such rules and orders in every respect as this court may from time to time make in regard thereto. And tbe Clerk of this court is directed to docket this case upon tbe docket of this court for further rules and orders of this court. And it is further ordered, that tbe said receiver pay to John E. Woodard, Solicitor, out of any money of said estate, tbe sum of $20, for services rendered in this behalf, tbe receipt of said Solicitor to be a voucher to the receiver for said sum in bis accounts. And this cause is retained for further orders, etc.

We are of the opinion that there was error in tbe ruling of his Honor, and in tbe rendition of tbe judgment in favor of the plaintiff. We think that a fair construction of tbe judgment of Judge Whitaker is that the receiver should proceed at once to collect tbe money, and to properly invest it. It would be a strained construction to bold that tbe receiver was first to ascertain where and bow tbe investment of tbe fund *585might be made, and then report to the court and get its advice as to what to do. We think that the order virtually instructed the receiver to invest the fund, of course using good faith and sound discretion.

The case of Rountree v. Barnett, 69 N. C., 76, cited by the counsel of the plaintiff, is not in point. There, the order of the court directed a specific and particular method of investment, which the officer charged with the duty violated by an investment in another manner. The change in the order was at his peril.

Error.

Oi.aRK, J., did not sit on the hearing of this appeal.