Syme v. Bunting

• Decision Date: 31 October 1884
• Citation: 91 N.C. 48
• Court: North Carolina Supreme Court
• Parties: ANDREW SYME, Adm'r, v. J. N. BUNTING and others.

91 N.C. 48

ANDREW SYME, Adm'r,

v.J. N. BUNTING and others.

Supreme Court of North Carolina.

October Term, 1884.

CIVIL ACTION, tried at Fall Term, 1884, of WAKE Superior Court, before Gudger, J.

This action was brought in the name of the state on relation of the plaintiff administrator, upon the official bond of the defendant, executed when he was clerk of the superior court. The case was heard upon exceptions to a referee's report, and from the ruling and judgment of the court below the plaintiff appealed. The facts appear in the opinion here.

Messrs. Strong & Smedes and Pace & Holding, for plaintiff .

Messrs. John Devereux, Jr. and J. W. Hinsdale, for defendants .

SMITH, C. J.

In an action pending in the superior court of Wake, at fall term, 1869, prosecuted by the solicitor against H. A. Hodge, guardian to one Woodson Carpenter, (a lunatic and the present relator's intestate) for an account and settlement of the trust estate under the statute, an interlocutory judgment was entered in these terms:

“This cause, coming on to be heard upon the complaint of the plaintiff, it is ordered and adjudged that George H. Snow be appointed to take an account of said guardianship:

That John N. Bunting be appointed receiver to take possession and manage said estate, subject to the orders of this court.”

By virtue of the appointment the said receiver, then clerk of the court, by renting and otherwise, came into possession of a fund of several hundred dollars belonging to said lunatic, to recover which the present action is constituted against said Bunting and the other defendants, sureties to his official bond, given to secure the faithful discharge of his duties as clerk, no bond having been required to secure the estate passing into his hands as receiver under said appointment.

Under an order of reference a report was made showing to be in the hands of said Bunting the sum of $383.39 not accounted for, and for which he was liable to the relator. The referee also finds as matter of law, that the official bond of Bunting as clerk, to enforce which the suit is brought, does not cover his liabilities incurred under the appointment as receiver, and that the sureties thereon are not responsible for the default, so that while the relator is entitled to judgment against Bunting personally, he cannot recover against his said sureties. The relator excepted to the referee's conclusion of law in regard to the obligation of the sureties, which being overruled and judgment rendered in favor of the sureties, the relator appeals.

The only question presented for solution is, whether the lunatic's estate is protected and secured by the official bond of the clerk, upon whom, without naming him as such in the order of appointment, the office was devolved, and whether his sureties undertake for this default.

The statute in force when the bond sued on was given, and with whose provisions, as stated in the complaint, we assume that it conforms, directs the condition to be that “he shall account for and pay over according to law all moneys and effects which have come or may come into his hands by virtue or color of his office, and shall diligently preserve and take care of all books, records, papers and property which have come, or may come into his possession by virtue or color of his office, and shall in all things faithfully perform the duties of his office as they now are or thereafter shall be prescribed by law.”

The words used in the concluding clause we have interpreted in Wilmington v. Nutt, 80 N. C., 265, as...