Board of Education v. Bateman

• Citation: 8 S.E. 882,102 N.C. 52
• Parties: BOARD OF EDUCATION v. BATEMAN et al.
• Decision Date: 18 February 1889
• Court: North Carolina Supreme Court

8 S.E. 882

102 N.C. 52

BOARD OF EDUCATION v. BATEMAN et al.

Supreme Court of North Carolina

February 18, 1889

W. M Bond, for appellants.

Pruden & Vann, for appellee.

AVERY J.

This was a civil action, heard at the fall term, 1887, of the superior court of Chowan county, before GRAVES, J. The material portions of the complaint are as follows: "(1) That on the ___ day of November, 1884, the defendant A. J Bateman was duly elected treasurer of Chowan county, and shortly thereafter qualified according to law as treasurer aforesaid, and at the same time, as treasurer, executed two bonds payable to the state of North Carolina, one in the sum of six thousand seven hundred and fifty dollars, and the other in the sum of seven thousand five hundred dollars, each of which to be void upon condition that the said A. J Bateman 'shall well and truly account for all money that may come into his hands by virtue of his office, and shall faithfully perform all things pertaining to his office required of him by the laws of North Carolina, or any other authority by virtue of said laws,' otherwise to remain in full force and virtue. (2) That W. J. Webb, T. G. Skinner Harry Skinner, James Parker, and J. J. Farmer, signed the first of said bonds as sureties, and the other defendants, Wozelka, Elliott, and White, signed the second as sureties. (3) That by virtue of his office as treasurer the said Bateman received from the sheriff of said county, and from other sources, for and on account of the school fund of the said county, a large sum of money, and has utterly failed to account for and pay over according to law of the amount so collected and received the sum of one hundred and seventy and sixty-four one-hundredths dollars." The defendants demurred as follows: "The defendants demur to the complaint in this action because it does not state facts sufficient to constitute a cause of action against them, for the following reasons: (1) This action is brought to recover an alleged balance due on the school fund by said Bateman as treasurer of the county board of education, and it is not alleged in complaint that Bateman ever qualified as treasurer of said board, or that these defendants ever executed any bond to cover a discharge of his duties as treasurer of said county board of education. (2) That the conditions of said bonds set out in complaint show they were executed to cover only the duties of Bateman as general county treasurer, and were not executed to cover any duties of Bateman as treasurer of the said board of education, and no breach of his duty as general county treasurer is assigned in the complaint. (3) For that it appears from said bonds that they were cumulative bonds to secure a safe handling of the general county fund, and no failure to pay over any part thereof is alleged." The judgment was as follows: "This cause coming now to be heard on complaint and demurrer filed and argued, it is adjudged that the defendants' demurrer be and it is overruled, and that the defendants be allowed to answer. It is further adjudged that the plaintiff recover of the defendants the costs of this term." Defendants appealed.

By a series of adjudications, extending over more than 50 years we think that the principles governing this case have been clearly settled. When a law is enacted that imposes the duty of receiving and disbursing a new fund upon the sheriffs or treasurers or other officers of counties, and the statute fails to provide that an additional bond conditioned for securing the faithful application of such fund shall be required, any bond given by the officer after the law is in force, though in terms it may provide only for securing the faithful discharge of official duty and accounting for money received by virtue of his office, will be construed to embrace the new duty, and to constitute a security for its performance. State v. Bradshaw, 10 Ired. 229. In that case the facts were that the sheriff of Rowan county and his sureties were sued on his official bond executed in the year 1847, and conditioned that "he shall pay all money by him received by virtue of any process to the person or persons to whom the same shall be due, and in all other things will truly and faithfully execute the said office of sheriff during his continuance therein." The defendants, his sureties,...