Opinion
December Term, 1858.
Where the money and property of an infant, without a guardian, was ordered by a decree of a County Court to be paid over to the clerk of that court, to be by him invested and managed, under the direction of the court, to the use of the infant, it was Held that such clerk and his sureties were liable on the official bond in force at the time of the making of the decree, independently of the time when the property was received.
THIS was a case agreed, tried before SHEPHERD, Judge, in which these facts are stated. Thomas Latham died intestate, leaving the relators, who are infants, his next of kin. Administration was committed to one Bowen, who filed a petition early in 1849, against the relators, praying that an account might be taken of the estate in his charge and settled, so that he might pay over the same. At May Term, 1849, a decree was made in the cause, ascertaining the estate belonging to the relators, who were then without a guardian, to be the sum of $220,88, in ready money, and a negro, at that time hired out for the year 1849, and directing the said estate to be paid and delivered to the defendant Fagan, then the clerk of the court, to be by him invested and managed for the benefit of the relators, under the direction of the court; and on the 23d of May, 1849, the money, $220,88, was paid under the decree by Bowen to Fagan, and at the end of the year, the negro was also delivered to him, and he hired him out annually for several years, and afterwards, under an order of the Court, sold him, and he received the hires and purchase money. Fagan was elected clerk of the court in August, 1845, for four years, and in August, 1848, he renewed his bond, by giving that now sued on, with the other defendants as his sureties. In August, 1849, he was elected again, and was in office until August, 1853, regularly giving bond. It was agreed that if the defendants were liable in law on the bond of 1848, for the money received by Fagan, as the hires and price of the negro, then judgment should be entered therefor, and for the sum of $220,88, with interest on those sums, and if not so liable, then the judgment should be for the sum of $220,88, with interest thereon. His Honor was of opinion that the relators were entitled to the whole amount received by Fagan at any time, as damages for the breach of the bond; and from a judgment accordingly, the defendants appealed.
Smith and E. W. Jones, for plaintiffs.
Winston jr., and Gilliam, for defendants.
When the case was opened, it was thought to be one of those, of which so many have been here, where independent acts of a clerk or sheriff were done, partly during one term of office and partly after a re-election, and that, in accordance with former decisions, the defendants were not liable but for money received, or for acts of omission or commission, happening during the term for which the bond was given. But on consideration of the act of 1848, ch. 40, the Court has adopted the opinion of his Honor. The act authorises the proceedings at the instance of an administrator, which were had in this case, and provides, after a decree finding a balance of money, or other estate in the hands of the administrator, due to an infant without a guardian, that the Court may direct the same to be paid and delivered to the clerk or the clerk and master, to be by him invested or managed under the direction of the Court for the use of the infant, and then creates a liability on the official bond, for the duties enjoined by the court in relation to the property. It is no part of our enquiry, whether other parties, on other bonds, may not also be liable, for the whole, or a part of this fund. It is sufficient if these defendants are liable; and the Court is of opinion that they are bound to make good all that Fagan rightfully got at any time under the decree. That required the whole fund to be paid or delivered to him, and it is not material when he received it, since it gave him the right to receive it at any, and all times, to be managed by him under the directions of the Court. His duty and power did not arise merely out of his relation to the Court, as its clerk, since the discretion is vested in the Court to make the clerk and master the quasi guardian of the infants instead of the clerk. If Fagan had not been re-elected, he would still, by virtue of the decree appointing him originally, have been the proper person to receive and invest the estate until some other had been designated by a new direction of the Court. He could not have accounted with his successor in office and delivered the fund to him without an order discharging him, and prescribing an investment by the successor. If, in the case that happened, of his re-election, he had, during his second term, accounted to the Court, and a new direction, founded thereon, had been given him, as being then the clerk, touching the investment, we should have held that a discharge of his bond, in the same manner as if he had been ordered to pay it to his successor, and had paid it. But no part of this fund came to him but by force of the decree in the cause, and he then undertook to manage it for the benefit of the infants under the orders of the Court, and from that nothing can discharge him but accounting to the Court, from which he derived his authority, and paying over the estate in conformity with the subsequent direction of the Court.
PER CURIAM, Judgment affirmed.