State Ex Rel. Richardson v. Smith

47 N.C. 8

• Court: Supreme Court of North Carolina
• Decided: December 5, 1854
• Status: Published

Opinion

PeaksoN, J.

The ground upon which his Honor based his opinion is not stated. In the argument, besides the two grounds taken to sustain it which were taken and have been disposed of ip the case of the State to the use of White v. Smith, delivered at this Term, (ante 4) a third ground was taken : that by the decree at Spring Term, 1850, the interest which had accrued upon the fund as well as the fund itself, was directed to be paid over to White ; so that the cause of action in regard to the interest, as well as the principal, vested in him: and Eichardson and wife must look to him for the interest.

The decree is expressed in very general terms, but taking it in connection with the former orders, and the rights of the parties as declared and settled, there can be no doubt as to the fact that it does not include the interest which had accrued, and it is evident that it was worded upon the supposition that the interest had been, or ought to have been paid over to Eichardson and wife. White had no right to receive, and had no pretence of claim to such interest. He was only entitled to the principal, subject to the right of Eichardson and wife to have the interest during the life of Mrs. Eichard-son. The bond which White was required to give was to secure the annual payment of the interest which might accrue, and has no reference whatever to the interest which had already accrued and In which White had no concern. So as White has a cause of action for the misapplication of' the principal which belonged to him, subject to the right of Eichard-son and wife to have the interest during her life, the latter upon the same grounds, have a cause of action for a misapplication of the interest which had accrued at the time of such misapplication, and constituted part of the fund so misapplied and drawn from the office : and also for the misapplication of the principal fund in which they were interested to the extent of the interest.

'Venire de novo.

Pee Cuiíiam.