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 pay 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.