State On Relation of The Commissioners of Wake County v. Magnin

• Decision Date: 31 January 1878
• Citation: 78 N.C. 181
• Court: North Carolina Supreme Court
• Parties: State on relation of THE COMMISSIONERS OF WAKE COUNTY v. ALBERT MAGNIN and others.

78 N.C. 181

State on relation of THE COMMISSIONERS OF WAKE COUNTY

v.ALBERT MAGNIN and others.

Supreme Court of North Carolina.

January Term, 1878.

CIVIL ACTION, tried at Fall Term, 1877, of WAKE Superior Court, before McKoy, J.

This was an action on the bond of defendant Magnin, in which it was alleged that he was duly elected and appointed Treasurer of Wake County on the 9th of September, 1873, and that on the 19th of said month, said Magnin and the other defendants, his sureties, executed their bond payable to the State in the penal sum of $40,000 conditioned that said Magnin as Treasurer of said County and Disburser of school money should well and truly disburse the money which came into his hands as the law required. It was further alleged that in 1874, the said Treasurer in accounting with the plaintiff for the money which he had received as such, was found in arrear, and indebted to said County in the sum of $2,613.70 which he had failed to pay over according to law, and judgment was demanded for the same, and interest.

The defendants demurred to the complaint and said that it did not state facts sufficient to constitute a cause of action, in this, that it appeared upon the face of the complaint that the said Board of Commissioners, if the cause of action therein exists at all, were not the proper relators to institute this action, but that the County Treasurer of said County should have been the relator therein; and that it is not alleged that the moneys, which it is alleged therein, were collected by said Magnin as Treasurer, and which it is therein further averred that he failed to pay, were collected by him under and by virtue of his appointment to said office for the same term of said office for which the bond declared on was conditioned that the said Magnin should, during his continuance in office as Treasurer of Wake County, well and faithfully execute the duties thereof and pay according to law, &c.

His Honor overruled the demurrer. The defendants excepted and asked that a notice of appeal be entered, which the Court refused, but permitted the defendants to answer upon the condition that a copy of the answer was furnished the plaintiff 20 days before the next term of the Court. From which ruling the defendants appealed.

Messrs. T. R. Purnell and T. P. Devereux, for plaintiff .

Messrs. Walker Clark, A. W. Tourgee, E. G. Haywood, D. G. Fowle and A. M. Lewis, for defendant Magnin and his sureties .

READE, J.

Battle's Revisal, ch. 27, § 31, Title, Counties and County Commissioners, make it the duty of the Commissioners to induct into office all of the County officers and to take their bonds. And ch. 30, § 9, Title, County Treasurer, makes it the duty of the Commissioners to sue on such bonds when the County Treasurer shall report to them a breach. And § 5 makes it the duty of the Commissioners to sue the County Treasurer for a breach of his bond. And ch, 80, § 10, Title, Official Bonds gives a right of action to any person injured. And in ch. 102, § 41, Title, Revenue, the right of action against a Sheriff is given to the County Treasurer, and if he refuse, to the County Commissioners.

It is to be regretted that our statutes have left such an important matter so much at sea. The bond sued on is exceptional. It is treated as if it were the bond of the County Treasurer conditioned for his duties as County Treasurer. But that is not precisely so. It is entirely distinct from the County Treasurer's general bond, and is not provided for under that chapter entitled County Treasurer, which provides for his general bond and prescribes his duties. It is provided for in ch. 68, §§ 32, 34, Title, Literary Fund, as follows; The...