Opinion
June Term, 1835.
When a slave dies in the custody of an officer of the court, during a litigation concerning it, the loss is to be borne by the party to whom the title is ultimately adjudged, especially when he had no right to the possession.
AFTER the decree for a specific execution of the contract for the sale of the slaves, made at December Term, 1833 (Rule 2, Dev. Eq. Cas., 467), by an order in the cause the sheriff of Guilford was directed to take into his possession the slaves remaining in the hands of the defendant and hire them out, and account with the master for the hires received by him. The master, in his report, stated that the sheriff had accounted with him for the hires, and had delivered to him all the slaves, excepting a female who had been sold to the plaintiff and who had died during the year for which she was hired.
Mendenhall and Winston for plaintiff.
Nash for defendant.
The master also reported that a balance of $983.96 was due the defendant from the plaintiff, and that the latter having failed to pay it, he had, according to the decree, sold slaves to that amount, and (112) had the funds in his hands; that he had received notice from a judgment creditor of the defendant not to pay $333 of that money to him, the defendant, as the claim had by the latter been assigned, when he had taken the benefit of the act for the relief of insolvent debtors, for the use of his creditors; and on this subject the commissioner prayed the instructions of the Court.
Upon no principle can the motion be sustained. The plaintiff was not entitled to the possession, for the master has reported a balance of $938.96 to be due from him for the purchase money, for which the defendant had a right to retain the negroes as a security.
But the defendant did not have the possession. He surrendered it to the court, and the slave was in the custody of the law, and the defendant is not chargeable for the value in the case which has occurred, more than he would have been if one of the slaves had died while held by the master for sale. The plaintiff has not sought a decree for compensation for a breach of trust, but specific execution of his contract. That relief he had in the decree which treated the negro as his, and gave him the hires while in the sheriff's hands. Of course, he must so treat her throughout. She died the property of the plaintiff, and he must bear the loss.
The master reports that a judgment creditor of the defendant has given him notice to retain out of the moneys in his hands belonging to the defendant under the former decree the sum of $333, the amount of the judgment, upon the ground that the defendant (113) had included the debt due on this decree in a schedule made by him as an insolvent debtor in execution upon that judgment, and the master prays the advice of the Court.
The money is not in the hands of the master as a private debtor, but it is in the custody of the law and held by him as the officer of the court. He must, therefore, pay it according to the terms of the decree, and cannot take notice of the rights of any person in or to it. The decree is his justification, and he is bound to comply with it according to its tenor. If another person has an interest in the fund, or requires an interest of the decree, the master is not to be charged upon his peril with deciding on it. Such a claimant must not apply to the master, but the court, either by petition in the cause or by bill in due time, according to the circumstances. The master must not, in this case, therefore, suffer any notice from any quarter to interrupt the execution of the decree.
PER CURIAM. Decree accordingly.