Sharpe v. . Connelly

11 S.E. 177, 105 N.C. 87

• Court: Supreme Court of North Carolina
• Decided: February 5, 1890
• Status: Published

Opinion

Clark, J.:

By the decree of August Term, 1885, the fund was paid into the Clerk’s office by judicial order, to abide further directions of thé Court. This made the Clerk, on his official bond, responsible for its safe-keeping. Thomas v. Connelly, 104 N. C., 342. By the decree of November Term, 1885, to which the heirs at law were parties, it was adjudged that the Clerk pay over the fund to plaintiff, as administrator, as assets for payment of debts of his intestate. This judgment has not been complied with. The failure to do so is a breach of the bond, for which the other defendants, who were sureties on the official bond, are liable. They were sureties when the money was paid in and when the order to pay out was made, and the condition of their bond has not been performed. It clearly can make no difference that the heirs had an interest in the fund when paid in, for the fund was paid to the Clerk, by order of the Court, to abide future directions. The obligation of the Clerk, upon his bond, was for its safe-keeping and the payment as directed by the Court. No one except the plaintiff has a right to recover the fund, or sue for the breach of the bond in failing to pay it as directed. The heirs at law of Sharpe are bound by the judgment of the Court of November, 1885, condemning the fund to use of plaintiff as assets for payment of debts of his intestate. Nor does it make any difference whether the fund was converted before December 1st, 1886 {when Connelly gave a new bond, on which the other defendants are not sureties), for there was a breach of the bond from November Term, 1885, by failure to execute the judgment, and that liability was not discharged by the Clerk giving a new bond in December, 1886. There was, therefore, no error in the refusal to give the instructions asked..

Affirmed.