State ex rel. Presson v. Boone

108 N.C. 78

Opinion

MekrimoN, C. J.

after stating the case: The defendant Boone was Clerk at and before the Spring Term, 1880, of the Superior Court mentioned above. At that term he was appointed, as Clerk, receiver of the funds belonging to the relator, then an infant. Afterwards, on the 4th of December, 1882, he received of funds due to her $770.59, which, it is alleged, he misapplied to his own use and purposes. He purported to be appointed such receiver under and in pursuance of the statute (Bat. Rev., ch. 53, §§ 22, 47). The liability of such Clerk as receiver arising under these statutory provisions was not, at the time just mentioned, embraced by his official bonds, because, as has been decided, his office and duties as such Clerk did not embrace the receivership and the duties and liabilities incident thereto. The receivership and its incidents were outside of and beyond his official duties as Clerk, and hence not embraced by his official bond and its purposes. Bat. Rev., ch. 17, § 137 ; Kerr v. Brandon, 84 N. C., 128; Rogers v. Odom, 86 N. C., 432; Syme v. Bunting, 91 N. C., 52.

The scope and purpose of the official bonds of Clerks of the Superior Courts were afterwards enlarged by the statute (The Code, §72), which provided, among other things, that the bond required should be void, “ If he (the Clerk) 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, or under an order or decree of a Judge, even though such'order or decree devoid.for want of jv,ris-diction o- other irregularities,”' &c. This statutory provision greatly enlarged the compass of the Clerk’s bond, and, as enlarged, it embraces receiverships and the incidental liabilities growing out of them. Syme v. Bunting, supra. But the receivership and the liability growing out of it in this case was .created and arose before the státutory provision just cited, and it operated only prospectively; it did not apply to and embrace such liabilities existing at the time it was enacted. Syme v. Bunting, supra; Thomas v. Connelly, 104 N. C., 342. The bond of tho Clerk current at the time of the enactment would, however, embrace such liabilities of the Clerk arising thereafter, because it was contemplated, at the time the bond in such case was given, that new and additional duties and obligations might be added to those of the .Clerk existing at that time. The statute so expressly provided. Bat. Rev., ch. 17, § 137 ; City of Wilmington v. Nutt, 78 N. C., 177; same case, 80 N. C., 265.

It appears that the defendant Clerk and receiver received the fund in question in December of 1882. The statute enlarging the scope of the Clerk’s bond above cited took effect on the first day of November, 1883. The Code, § 3866. The bond sued upon does not, therefore, embrace the liability of the defendant Clerk as receiver. Syme v. Bunting, supra. It might possibly be otherwise if it appeared that the Clerk, as receiver, had the fund at and after the time the enlarging statute took effect. It does not appear that he so had the same.

It is made a ground of defence in the answer of the defendants, that the appointment of the defendant Clerk as receiver of the relator was void, because, as alleged, there was no action pending in which such appointment might be made, nor was there any presentment ofui Grand Jury that authorized such appointment as contemplated and intended by the statute (Bat. Rev., ch. 53, §§ 21, 22, 46, 47) then in force. The appointment seems to have been, at least, irregular. So far as appears, it was made upon the mere suggestion and motion of the Solicitor for the State. But we need not decide that such appointment was or was not void, because we are of opinion that the relator is entitled to recover whether the defendant Clerk was or was not such receiver.

The statute (The Code, §§1543, 1544; Acts 1881, ch. 305, §§ 1, 3) prescribes that “ It shall be competent for any executor, administrator or collector, at any time after twelve months from the date of letters testamentary or of administration, to pay into the office of Clerk of the Superior Court of the .county where such letters were granted any moneys belonging to the legatees or distributees of the estate of his testator or intestate, and such payment shall have the effect to discharge such executor, administrator or collector, and his sureties on his official bond, to the extent of the amount so paid.

“It shall be the duty of the Clerk, in the cases provided for in the preceding section, to receive such money from any executor, administrator or collector, and to execute a receipt for the same under the seal of his office.”

Now, when a Clerk receives money as contemplated 'by this statutory provision, he clearly receives it by virtue of his office. It is made his duty, and he is required to receive money in the cases provided for, and in the nature of the matter he is chargéd and chargeable with it as Clerk when and as soon as he receives it. He is required to keep the same safely until he shall pay it to the persons entitled to have the same. His bond is intended to secure “ all moneys and effects which have come or may come into his hands by virtue or color of his office,” etc. Thomas v. Connelly, supra; Cassidey ex parte, 95 N. C., 225; Sharpe v. Connelly, 105 N. C., 87.

It appears here, by and from the complaint, among other material facts alleged, that an administrator de bonis non, after the lapse of more than twelve months next after the date of his letters of administration, paid the sum of money mentioned for the relator, a distributee of the intestate, to the Clerk of the Superior Court of the courity where such letters were granted; that the Clerk gave his receipt for the same, signing it as “ Clerk of the Superior Court of Northampton County, and receiver of Mary E. Presson,” the relator, and under the seal of his office. The Clerk thus received money that he might receive and be charged with in a case in the waj^ provided for by the statute. He seems to have had the statute in view, and to have intended to comply with its requirements. He gave his receipt as Clerk “ under the seal of his office” — that is, the seal of the Court — kept and used by him. He had no other seal of office required or recognized by law. Hence, the seal of the Court is meant. Although the Clerk may have been receiver, still he might receive such fund into his office as Clerk. The statute, required that he should receive it as Clerk, to be paid out to whomsoever might be entitled to have it. It was in his hands — in his office — for all lawful purposes. He received it, as he might do, as Clerk as well as receiver. He purported to receive it by virtue of his office in the case provided for by law. Else, wherefore did he give and sign the receipt as Clerk under his seal of.office ? There is no reason why he might not receive the fund into his office as Clerk, although the Court might, in some appropriate pertinent way, require him to deal with the fund as receiver, if he were such receiver. He might be chargeable with the fund in the double capacity of Clerk and receiver. '- In a proper case, the Court might have jurisdiction to require him, in such double capacity, to account for and dispose of the fund according to law. The mere fact that the Clerk was receiver did not prevent him from receiving the fund that he was required by law to receive as Clerk.

As the defendant might thus receive the fund and did so, as appears from the pleadings, and his receipt not being denied, the law charged him with it as Clerk by virtue of his officej and when he made default in failing to pay the same to the relator, who was entitled to have it, as he was bound to do, she at once became entitled to have her remedy for such default against his sureties to his appropriate official bond for a breach of the condition thereof.

Nor is there any just reason why the relator may not have her remedy in this action, because the allegations of the complaint fully develop informally her cause of action against the defendant as Clerk as well as receiver, and it appears from material facts admitted in the answer, and the verdict of the jury upon the pertinent issues of fact sub mitted to them, that the relator is entitled to have the judgment appealed from. When the cause of action appears sufficiently from the complaint, though informally alleged, and the case is tried upon its merits, the Court ought to enter such judgment, as the pleadings, the admissions of fact, the findings of fact in some cases by the Court or a referee, or the verdict of a jury upon issues submitted to them, warrant, without regard to an imperfect or improper demand for judgment in the complaint or other pleadings, or whether there be any formal demand therefor. The merits of the matter litigated and settled appearing, the law at once suggests the proper judgment to be given. While it is far better and very desirable that the pleadings shall be directly pertinent, precise and orderly, still when they can be upheld as sufficient, this must be done, if to do so works no injustice to a party. This is the spirit and purpose of the present method of civil procedure. Dempsey v. Rhodes, 93 N. C., 120; Moore v. Nowell, 94 N. C., 265; Harris v. Sneeden, 104 N. C., 369.

The exception to the instruction the Court gave the jury as to interest is unfounded. As the defendant Clerk failed to pay the relator the money he had so received when she demanded that he pay her the same, the presumptiou is that he used it as soon as he received it. He might show the contrary. If he used it, he was properly chargeable with interest at the rate of six per centum per annum, and twelve per centum, certainly, from the time of the demand. The Code, § 1890; State v. Allen, 5 Ired., 36.

Judgment affirmed.