#### The Judges v. Deans.

From Hertford.

A sale of i-ea! estate by tlic CUnTc and Master in Kquiiy., ordered by the Couj't, unde" tise acts of Assembly anthovísiur* a sale where it is necessary for an equal and advantageous division, is an officiol act, anil, as sueli, comes within the scope of tile comlAon of the bond of the Clerk and Master.

To express, in the condition of a bond, what the law would have implied from the other words inserted, cannot affect the validity of the bead.

Hy die lüíu'Sti;live plea of pet-'orii'-anee of covenants, the defendant on del takes to prove whatever is necessary for hia defence.

This was ail action of debt brought against the deferí • dant, as one of the securities of Mo tv ell Jones, who had been appointed Clerk ami Master in Kqu'rty for Hert-ford county. The bond was made payable to “the honorable John 1j. Taylor, Chief-Justice, John Hall, Samuel Ho writ', Henry Seawell, Joseph J. Daniel and Thomas Ruffin, Judges of the Superior Courts of Haw ami .Equity for the State of North-Carolina, and their successors in office.’* The condition of the bond was, that Howell Jones should “ well and truly execute the office of Clerk and Master of Hertford, agreeably to the several acts of Assembly of the State of North-Carolina, by safely keeping the records of the said officeand further, that lie. should “ well and truly pay a!! sums of money which he might receive as Clerk and Master aforesaid, to the proper persons, their agents or attor-nics, who might be authorised to receive the saíne.” This suit was brought in the names of the present Judges of the Superior Courts, and the declaration, which was in their names, assigned a breach of the condition of the bond generally, “ that the defendant did not well and truly execute the office, &c. and that iie did not well and truly pay all sums of money, &c.” The defendant plead" *94c(j tlte general issue, and that the covenants were por’ f°rme^ ami «oí broken ; the plaintiff, in his replication, set forth a special bread), in the violation by Jones, of a decree of the Court, in which plaintiff was interested ; to which defendant rejoined, that Jones was never called on to perforin the decree. It appeared, in evidence, that at October term. 1817", of Hertford Court of Equity, a bill was filed by the parties for whose benefit this suit was brought, praying that the sale of a tract ofland might be decreed to be made. A decree was, accordingly, made that the. land should be sold by the Clerk and Master, after giving forty days notice, on a credit of six and tv.v.Ive months : and, at the ensuing term, the Clerk and Master reported that, in obedience to the decree' of the Court, he had advertised for forty days, and exposed to sale the land mentioned in the decree ¡ that Isaac Carter had become the purchaser, and that he had taken his notes for the purchase money, payable in six and twelve moni hr;. This report, was confirmed, and it was ordered that the Clerk and Master should pay over to the complainants the bonds taken at the salcj and on his failure to do so, the present suit was brought. There was a verdict and judgment below for the Plaintiffs, from which the Defendant appealed.

Gaston, for the Defendant,

contended that the act com plained of was not a Ijreach of official duty; that the Clerk had received the bonds, as a commissioner, as an individual selected by the Court for the performance of a certain act, and that the Defendant, as his security, was bound only for his acts as Clerk — (JVfero Mevisal, 2 vol. ¶. 12SS.)

It might he questioned, he contended, whether on this bond an action could be maintained by the successors of the obligees. The bond was different from that prescribed by law — («Seis 1777, chap. 115, and of 17%?? chap.. *955478.) The bond contained a conditio» not specified in the acts, “to pay over money received, &,c.”

independently of a statutory provision, this bond could not be taken to the Judges and their successors $ for, to carry a chattel or chose in action thus in succession, is the peculiar characteristic of a corporation aggregate — (t's. Lit. 4Í5 &.)

A bond given otherwise than the statute points out, if good, can only be so as a bond to the Judges in their individual capacities.

££' this be a good bond under the statute, it must be sued for not in the nswten of the obligrat, but of their assignees' — (¿Ms 177 í¡, chap. J 1U — Jinmn vs, Frazier, i Jlurph. 411.)

No judgment can be pronounced for the ¡Plaintiff, in this case, torno breach is any where assigned.

Taylor, Chief Justice.

This action is founded on the olfictei bond of eiowcll Joucn, as Clerk and Master in Equity for LHcrtibrd county. Tbc bond and the breaches are set forth in the declaration, according to a practice which is saaciioaed by authority, and to which there appears to be no well founded objection. — (2 Chilly, p. 153.) The breach unsigned, produced the only question which was agitated in the Superior Court, viz. whether the sale directed to be made, by the Clerk and Master was an official act, and such an ouo as came within the scope of the condition of the bond. The sale of land where a division among the claimants is inconvenient, is a power recently conferred upon the Courts of Equity j huí: a sale under a decree, in a vast variety of rases, belongs to its ancient jurisdiction, and is probably coeval with the Court itself. The direction of such sales has been constantly confided to the Master in Chancery in .England, and to the Clerk and Master here; and it is better for the suitors that their interest should be massaged by an officer of the Court whom it may control, and whose *96responsibility is «court'd by a bond and an oath, than by a stranger : My opinion, therefore, coincides on this point with that of the Judge who tried the cause.

It is objected, in this Coact, that the condition of the bond varies from that prescribed by iaw, which is “ for the safe keeping the records, and the faithful discharge of his duty in office.” But paying over monies, received by him in his oficial character, to the persons entitled, is included in the laiihftii discharge of his duty in office; and to express, in the condition of the. bond, what the. Saw woo'd have implied from the other words inserted, cannot a fleet the validity of the bond. The specification was snper'iuoun, and did no good, hut strike it out, and the bond contains the condition required by law | surplusage does not vitiate even in an indictment. It is further objected, that no demand was made of these bonds by the persons entitled to receive them. 1 think the law impost's it as a duty upon the persons to whom these bonds were delivered, to make a demand of them at the office of the Defendant, who might, by his pleading, have called for ¡¡roof of the fact. But the affirmative plea of performance of covenant, waives it, and the Defendant undertakes to prove whatever is necessary for his defence — (12 Mod. 414.) The declaration appears to express sufficiently for whose use the action is brought.

Henderson, Judge.

The Plaintiff must, appear, upon the pleadings, to have sustained an injury. It is not sufficient., if it appears that the Defendant has done wrong, if that wrong was not done to the Plaintiff. Had the bond on which the- suit is brought, been made to the Plaintiff, a breal'll alone would have given an action to the, Plaintiff, and have entitled him to nominal damages at least • for a hare, breach of the contract was an injury to him | tie had a right to claim a performance, the Defendant having stipulated ivtlh him, giving him that right i but this bond, not having been made payable to *97bins. or any of the covenants lo be performed to him spe-HUJiy. Le nhould bate shown, In hi» declaration, how ho woo iij¿hereby. and a demurrer ;,ould have boon íjvLP ; «roí! the declaration, it does not appear hut it,at be i" iv; oifictoits hileraieddler, and the act of A«-se.uHs of 1793, authorising s¡iii:¡ to he bronchi upon certain clidal bonds, (and of this kind amour; the rest) •wiiLoui -.15! is in accordance emit the princi-pie reirrirhig she Plainti!.", in his det.’ara/lwsi, foi-Aer/haw he has been injured tiy a aivecb ; Luí ss deíeoíive declaration '.aaj be cured by the ilSrfesiilanL.’ pW., and the Püa'ulíf’ü reolrcfition, provided thee the replication is not a dopariurc from the dedarafiiosi, hat maiyisuins and fori hie;-; it. Íít ¡.his case, the breach Js general — -that the Defendant did «oí perform his covenants or conditions ; the defendant pleads that the conditions were performed, and that they were no-; broken. The laiter plea goes to negative covenants, and as none such are in the condition, it is therefore unnecessary to consider it $ the other alienes a performance ; the Plaintiff replies, and sets forth this special broach, is violating a decree of the C3o?íí*í in which he was interested. This is no departure irons his declaration, and is an answer to the plea; taking the pleadings together then, it appears, that if the Piubitiff 9s alienations are trae, that he has siisiaiued special damages bj a breach of the condition, and that this is not an officious suit, am! the Defendants’ rejoinder, cither upon record, or in evidence, i-, a clear departure from his plea, lis bis plea, he says that he has performed the conditions; in bis rejoinder, he, oilers an excuse for his non-performance, to wit: that he never was called on by the Plaintiff to perform it. I think, therefore, the question, whether Use E'htinfiff ever called on the, Defendant to peiform the service, is oof put in issue; and if if were, it would be a departure; it would be taking tlie Plaintiff by surprise, to n quire proof of it; in fact, the Deiendant’s plea admits it, by alleging a performance. If the. Defendant intended 1o have made it a *98ground of defence, he should have pleaded “ always ready, &c." — (1 Chitty on Pleading 401 — 1 Saunders, 228.) The cases cited ;• id relied on by the Plaintiff’s couu-f.,eg ,l(? to the- second pokii, I think are full and conclusive, particularly 12 Mod. 414. The other objection I--* that this was not an oUeial act s for the reasons ,«.signed by the Chief-Justice, § think there can be little doubt that the Clerk acted «LiciaiJy in every part of the. business ; but surely there can be none as to that part of the decree which requires that he should deliver over th<k bonds to the ror.iphvin t'ci 5 his «dice was the. proper placo for tlieir deposit, and he, su: Clerk, was bound to act,, with regard to them, atTortirig to ike older of the Court.

The judgment should be a&raed.

Hall, Judge, concurred.