This case comes' to us upon exceptions to certain findings of facts by his Honor, the District Judge, in accordance with the report of a referee. Although the action in which the proceedings were had began before 1868, yet as the motion against the clerk and master and his sureties was made after 1868, we consider that we have no jurisdiction to rehear any issues of fact decided by the Judge below. In this case the controverted matters arise upon what are substantially issues, which would have been made upon the pleadings if the plaintiff had set forth more pariicularly the matters alleged by her, and the defendants had answered as regularly as they should have done. The parties have waived the irregularities, and have treated the exceptions to the report of the referee as raising the issues. Neither party asked that the issues thus treated as made should be tried by a jury, nor did they in writing waive a trial by jury and consent that the Judge should find the facts. They have made no objection to his doing so, and if his doing so was irregular it has been waived. Under these circumstances, while we would refuse to decide any issues of fact, if it appeared to us that any of the findings of the Judge were plainly mistaken, we might remand the case to him, in order that the parties might if they chose have the doubtful questions passed on by a jury.

For this purpose we have carefully examined all the testimony which was before his Honor, and we do not see that he has erred in his conclusions:

1. As to the sum of $582, the defendant, Barnett, is charged with, as received from his predecessor, Bradsher, it is true that 'Webb, who received it as the deputy of Bradsher, says it was never paid to the defendant, Barnett, that he knows ©f, and there was no direct evidence that it was. But it was the duty of Barnett to have called on his predecessor for an account, and he did so, and received some of the property, viz.: the notes. Although he would not become liable by *79 reason of his failure to demand an account, except perhaps for the damage which resulted from the omission, yet the existence of this duty gives force to the fact that he paid to Mrs. Rountree interest before he received anything for her, if he had not received this sum, and that the sum paid so nearly corresponded with the interest on this amount.

2. We also concur with his Honor in his decision on the second exception, and we think his decision should have been the same, assuming what is testified to by Webb as true.

The original order directed the sale to be made on a credit of twelve months. The subsequent order at Pall Term, 1856, directed the clerk to invest the proceeds in notes with security, and to pay the interest to Mrs. Rountree annually during her life. No form was prescribed for the note, but evidently a form was contemplated by which it would not have been in the power of a debtor to pay at any time he might choose to do so. The purchasers at the sale were entitled to tender the money at the expiration of the credit. But it may be doubted whether, under the circumstances, Harvey Rountree had not lost his right to make a tender in 1859. Certainly the clerk was not obliged to accept a partial payment, nor would a tender of part have stopped the interest. Neither was the clerk bound to accept payment of the residue in Confederate money in 1862. Was he justified in doing so under the circumstances ? The fund was safe as it was; any change in the investment involved some loss of interest in the interval before reinvestment; the new security might be more precarious. The clerk in unnecessarily accepting these two payments without previous authority from the Court, without consulting the parties interested in the fund, and without afterwards reporting the fact to the Court and obtaining its sanction, was guilty of imprudence, to say the least of it. And when afterwards he repeatedly changed the investment, first by lending the *80 money to Mason and receiving payment from him a short time afterwards in Confederate money, and then to Smith, with the same result, and finally by purchasing a Confederate bond, all without the sanction of the Court or of th® parties, he was guilty of official misconduct, and became liable for any loss resulting.

Public policy and the safety of the funds held by the officers of Courts for the use of suitors under the orders of th© Courts, require a different and stricter rule of responsibility to be applied to them than to administrators and guardians and trustees of a like character. These last are compelled to act upon their own judgment. They can rarely consult their cestui que trust. Only under extraordinary circumstances are they entitled to apply to a Court for its advice. But an officer of a Court may generally consult the parties in interest as to any change in the disposition of the fund, and he may always ask the advice of the Court, and that if given without fraud on his part will be a protection. The Court in such cases is really the trustee, and the officer only its agent to obey its orders. He has no power and no discretion beyond what is contained expressly or by implication in the orders of the Court. He is personally liable for every loss which may happen by reason of his acting without or beyond them. In this case the question is not, did prudent, business men receive Confederate money at the times when the clerk in this case did; ñor even whether a guardian would have been justified in receiving it. But whether th© clerk was authorized by the orders of the Court in dealing with the fund in the way he did in receiving payment unnecessarily, and in a new currency which had never been sanctioned by the Courts, in investing and reinvesting in individual notes, whether with or without security, and finally in a Confederate bond without consulting the Court or even reporting his dealing. The assent of the parties interested would have estopped them from complaint, but *81 they were not consulted. We do not say that there can be no case in which a clerk or like officer would not be justified in calling in or changing an investment without the previous sanction of the Court or of the parties. But to justify his conduct in such a case he must show a necessity for prompt action, to prevent a threatened loss, and must report his action to the Court. In such a case where the necessity was clearly proved, a Court would deal liberally with him, and require nothing but bona fides and ordinary prudence. But when he assumes the power to change and rechange an investment at pleasure, without consulting or informing the Court, he does so at his own risk of the safety of his course. Mere bona fides will not save him.

3. The third exception seems to have no foundation in fact. The defendant was allowed all he paid to his successor.

Judgment in this Court.

Pee. Curiam. Judgment affirmed.