Commissioners of Wake Cnty. v. Magnin

• Decision Date: 28 February 1882
• Court: North Carolina Supreme Court
• Parties: COMMISSIONERS OF WAKE COUNTY v. A. MAGNIN and others.

86 N.C. 285

COMMISSIONERS OF WAKE COUNTY

v.A. MAGNIN and others.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Fall term, 1881, of WAKE Superior Court, before Gilmer, J.

The action was brought in the name of the state on the relation of the board of commissioners of Wake county, upon the official bond of the defendant as county treasurer. The defendant, Bunting, demurred to the complaint, and from the judgment of the court sustaining it, the plaintiffs appealed.

Messrs. George H. Snow and T. R. Purnell, for plaintiffs .

Messrs. E. G. Haywood, Hinsdale & Devereux, D. G. Fowle and Walter Clark, for defendants .

SMITH, C. J.

The defendant, Magnin, on his appointment to fill a vacancy in the office of county treasurer in September, 1873, as principal, and the other defendants, as sureties, executed the bond set out in the complaint and containing this condition: “The condition of the above obligation is such, that whereas, the above bounded, Albert Magnin, has been duly appointed treasurer of Wake county and become disburser of the school money; now, therefore, if the said Albert Magnin shall well and truly disburse the money coming into his hands under the requirements of law, then in that case, the above obligation to be void, otherwise to remain in full force and effect.”

When his term expired on the first Monday in September of the year following, the said Magnin had, or ought to have had, of the moneys received by virtue of his office for county school purposes, an unexpended balance of $2,648.38, as appears upon his own sworn return annexed as an exhibit to the complaint, for which sum, reduced by about $34, the present suit is prosecuted by the board of county commissioners. To the complaint making these allegations, the defendant, Bunting, alone demurs, the record being silent as to the others, assigning several causes of demurrer, the substance of which is embodied in the following:

1. For that the relators are not proper parties, and the action can only be maintained by, and on the relation of the successor in office to whom the fund is due.

2. For that no sufficient demand was made before bringing the action; and

3. For that the default set out is not covered and protected in the condition of the bond.

His Honor sustained the demurrer and adjudged that the defendant, Bunting, go without day and recover his costs. From this ruling the relators appeal.

I. The objection, based upon the form of the action, we consider settled and disposed of in the former action between the same parties, (78 N. C., 181,) and upon the construction of the different statutory provisions relating to the subject.

II. The second cause of demurrer assigned is equally untenable.

The cases cited in the argument of counsel for the appellants, State v. McIntosh, 9 Ired., 307, and State v. Woodside, Ib., 496, which were actions upon the sheriff's bond, and Little v. Richardson, 6 Jones, 305, which was upon the clerk's bond, decide the general proposition that a demand before suit is not necessary, when a public officer collects and retains money which he ought to pay over, and it embraces the case of a retiring officer who is required to deliver and pay over to his successor the funds and other effects in his hands.

But the objection, if it possesses any force, does not lie against the complaint which does sufficiently aver a demand. It alleges the failure of Magnin to disburse and account for the sum due, “although demand has been made upon him, the said Albert Magnin, by the plaintiff,” and that his failure consisted in not “well and truly accounting therefor or by paying over the said sum of $2,613 70 to his, the said Albert Magnin's successor in office.” This is clearly a demand, and a demand that the moneys be paid, not to the state, nor to the relators, but to the county treasurer, his successor in office.

III. The remaining question raised by the demurrer, as to the sufficiency of the terms employed in the condition to cover the default set out in the complaint, is not free from difficulty, and we reach its solution with some hesitancy.

The county treasurer becomes, ex-officio, “treasurer of the county board of education.” Bat. Rev., ch. 68, § 32.

The county treasurer of each county shall receive and disburse all public school funds. But before entering upon the duties of his office he shall...