#### IN THE MATTER OF MARY BOSTICK AND OTHERS.

If a public officer can be exonerated at all from his liability for moneys belonging to individuals, which come into his hands in the course of his official duty, on the ground that they have been stolen from him, he certainly cannot be so exonerated upon his own affidavit only of the fact of such loss.

This was an appeal from an order made by his Honor Judge Pearson, at tire Fall Term, 1841, of Richmond Superior Court of Equity, in a case which thus appears upon the record.

Mary Bostick &. others, ex parte.

Petition for sale of land coming on to be heard, John Giles, esquire, Attorney for the petitioner, moved that the Clerk and Master be directed to distribute the money arising from the sale of the land, which had been collected by the Clerk and Master. The order was so made. Afterwards, Mr. Giles stated to the court, in the presence of the Clerk and Master, that application had been duly made to the said Clerk and Master for the money according to the above order, and the Clerk and Master had paid over all, except the sum of about four hundred dollars, which had not been collected, and the sum of one hundred and sixty dollars and eighty-five cents, which the said Clerk and Master admitted he had collected but refused to pay and account for, alleging it had been stolen from him.

These facts being admitted by'the Clerk and Master, Mr. Giles moved for a rule upon the Clerk and Master, Erasmus Love, to shew cause why he should not be ordered to pay over the said sum of $160 85. The Clerk and Master, in answer to the rule, filed an affidavit, setting forth, that, after the said sum of $160 85 was received by him as Clerk and *328Muster, the same, without any negligence or default on his together with other sums of money belonging to the office, and soaie of his own money, was, on the 20th day of jyjarc|í¡ ig,^ stolen from out of a small trank in his dwelling house, where he kept his own money together with the office money, and that he has never since been able to obtain restitution of the said $160 85, or the other office money, or his own money. Upon which grounds his attorney, Alexander Little, insisted, that as Clerk and Master be was not liable. But the Court was of opinion, that he was liable to account for all moneys received by him as Clerk and Master, except where the moneys were destroyed by the act of God, or taken by the public enemies of the country. It was therefore ordered by the court, that the said Erasmus Love, Clerk and Master as aforesaid, pay over to the parties entitled the stim-of g.H50 85. From which order, the said Erasmus prayed for and obtained an appeal to the Supreme Court.

No counsel appeared in this court for either party.

Ruffin, C. J.

As the case does not require it, the court is unwilling to lay down a rule as to the care and diligence a public officer should use in the keeping of the moneys belonging to individuals, which come to his hands in a course of official duty. For, supposing that he may be excused, though he lose them, not by the act of God or the public enemies, but by robbery or secret theft, yet, very clearly, the circumstances, to shew that the fact did not occur by culpable negligence, ought distinctly to be stated and established by competent evidence. Here there is neither such a statement, nor evidence from a competent source. The party himself cannot, by his own oath, protect himself from liability for the sum which he received in the cause. This is not a proceeding for a contempt by way of imposing a penalty or punishment, in which the officer tenders himself to purge the contempt on oath ; but it is an order simply to *329pay over money received by him,' and he wishes to be adjudged not liable for it on his own evidence only. We must say also, that, if he could be heard, his statement is too mea-gre to satisfy the court. He says, it is true, that the loss was “ without any negligence or default on his part.” But that is a point,about which persons may differ very materially. It does not appear, whether the alleged theft was in the day or night; when the' party and his family were at or from-home; in what part of the house the trunk was, whether exposed or in a private place; or whether suspicion has fallen on' any person in particular, or whether that person was or was not one of the party’s household, and had given- cause for suspicion as to his or her integrity. In fine, the clerk and master asks to be exonerated upon his own judgment of due diligence, without affording, to the court any means of forming a judgment upon that point for themselves.-

We see, therefore, no reason, why the master should not remain liable for the sum of money, which is the subject of the motion, and think his Honor was right in ordering him to pay it. This opinion will accordingly be certified to the Court of Equity, that the matter may be there further proceeded in.-

Per Curiabi. Ordered accordingly.