Latham v. Fagan

• Decision Date: 31 December 1858
• Citation: 51 N.C. 62,6 Jones 62
• Court: North Carolina Supreme Court
• Parties: The State on the relation of WM. A. LATHAM and others v. F. F. FAGAN and others.

6 Jones (NC) 62

51 N.C. 62

The State on the relation of WM. A. LATHAM and others

v.

F. F. FAGAN and others.

Supreme Court of North Carolina.

December Term, 1858.

Where the money and property of an infant, without a guardian, was ordered by a decree of a County Court to be paid over to the clerk of that court, to be by him invested and managed, under the direction of the court, to the use of the infant, it was Held that such clerk and his sureties were liable on the official bond in force at the time of the making of the decree, independently of the time when the property was received.

THIS was a case agreed, tried before SHEPHERD, Judge, in which these facts are stated. Thomas Latham died intestate, leaving the relators, who are infants, his next of kin. Administration was committed to one Bowen, who filed a petition early in 1849, against the relators, praying that an account might be taken of the estate in his charge and settled, so that he might pay over the same. At May Term, 1849, a decree was made in the cause, ascertaining the estate belonging to the relators, who were then without a guardian, to be the sum of $220,88, in ready money, and a negro, at that time hired out for the year 1849, and directing the said estate to be paid and delivered to the defendant Fagan, then the clerk of the court, to be by him invested and managed for the benefit of the relators, under the direction of the court; and on the 23d of May, 1849, the money, $220,88, was paid under the decree by Bowen to Fagan, and at the end of the year, the negro was also delivered to him, and he hired him out annually for several years, and afterwards, under an order of the Court, sold him, and he received the hires and purchase money. Fagan was elected clerk of the court in August, 1845, for four years, and in August, 1848, he renewed his bond, by giving that now sued on, with the other defendants as his sureties. In August, 1849, he was elected again, and was in office until August, 1853, regularly giving bond. It was agreed that if the defendants were liable in law on the bond of 1848, for the money received by Fagan, as the hires and price of the negro, then judgment should be entered therefor, and for the sum of $220,88, with interest on those sums, and if not so liable, then the judgment should be for the sum of $220,88, with interest thereon. His Honor was of opinion that the relators were entitled to the whole amount received by Fagan at any time, as...