Opinion
(December Term, 1832.)
1. The Act of 1819 (Rev., ch. 990) requiring clerks to renew their bonds does not make their offices annual appointments, but gives cumulative securities for the performance of their official duties.
2. Nonpayment of money received by a clerk officially may be assigned as a breach on any bond given by him.
3. Is the bond of a clerk and master within the Act of 1810 (Rev., ch. 800)? Qu.
THE defendant Bryan, being clerk and master of the court of equity for the county of Johnston, on 26 March, 1823, gave a bond and sureties, with the usual condition for the faithful discharge of the duties of his office. On 24 March, 1824, he gave a similar bond with different sureties, and so, also, on 29 March, 1825 and 1826.
W. H. Haywood for plaintiffs.
Hogg for sureties of 1824.
Gaston for those of 1825.
Badger and Devereux for those of 1826.
By an order of the court of equity for Johnston County, a large estate held by the relators, as tenants in common with others, was sold by the clerk and master, and the purchase money directed to be paid to the owners as they were respectively entitled. The clerk and master began to receive the purchase money in March, 1823, and continued the receipts until March, 1827.
At the term of the Superior Court of Johnston, held on the fourth Monday of March, 1828, the defendant Bryan failed to renew his bonds, and a successor was appointed. At the same time the guardian of the relators, they being infants, applied to Bryan for their share of (452) the purchase money, but he was unable to pay it, and suits were soon after instituted on the two first bonds above mentioned, and afterwards, on the others, and the nonpayment of the money due the relators, assigned as a breach of their conditions. The defendants, after oyer, pleaded performance, and the Act of 1810 (Rev., ch. 800), limiting actions on certain office bonds to six years.
The above facts were submitted to Norwood, J., in the shape of a case agreed, at JOHNSTON, on the spring circuit of 1831, when judgment was rendered for the plaintiffs, and the defendants appealed.
In this Court the four cases were considered together; the questions discussed were those which arose between the defendants.
The Act of 1793 (Rev., ch. 384), and the Act of 1819 (Rev., ch. 990), requiring clerks and masters in equity, and the other officers mentioned in them, to renew their bonds at stated periods, does not make each renewal of the bond a new appointment to office, but the new bonds are made additional securities for the performance of the official duties of the incumbent. The office is vacated by neglecting to renew the bond, not by doing so. The bonds thus given are cumulative; the old sureties continue bound for the performance of all the duties then resting upon the clerk, as well as for those which should thereafter arise, during his continuance in office; the new sureties are also bound in the same manner from the time of their executing the bonds until the office determines. Some official duties are of a continuing character, the obligation to perform them remaining until they are performed. Of duties of this kind, there may be several breaches, or rather, breaches at several different times, and a breach at one time does not put an end to the official obligation, so that another breach of the same duty (453) cannot occur. Breaches of this kind are most commonly acts of omission, an instance of which is that assigned by the plaintiffs, viz., the nonpayment of the money due the relators. This is a continuing duty, and if not performed when an additional bond is given, it attaches upon the new bond, and also continues obligatory on the old ones. There are other acts which, being once done, cannot in their nature be done again. Acts of this kind, which are breaches of duty in a clerk, being, I presume, acts of malfeasance, can be only assigned as breaches of a bond in existence at the time they happened; they are not covered by bonds given afterwards. I do not intend to specify any act of this kind, but leave them for discussion when proper cases shall arise; all intended to be decided in this case is that the neglect of the clerk and master in not keeping the money of the relators safely, and paying it over to them, or to some one authorized to receive it for them, is an act constituting a continuing violation of official duty, and may be assigned as a breach of any bond which he has given. Judgment must therefore be rendered for the plaintiffs upon all the bonds, and must include damages, at the rate of 12 per centum per annum upon the money due the relators from the time of the clerk and master's neglect to pay it over. The Act of 1819 (Rev., ch. 1002) being express upon this point, and including the sureties as well as the officer himself.
The Act of 1810, barring actions upon certain official bonds, unless brought within six years, does not in its words include the bond of a clerk and master, the words being "all suits on sheriffs, Superior Court clerks, and clerks of the courts of pleas and quarter sessions bonds shall be commenced, " etc. Although a clerk and master in equity is in strictness a clerk of a Superior Court, yet the Legislature has, from the creation of the office in the year 1787 to the present time constantly distinguished that officer from others by the appellation of clerk and master. Courts of justice have adopted the same appellation, and, in fact, it has become general in all classes of society. The question whether a clerk and master's bond is within the act does not arise in any of these cases, as the first money was received in March, 1823, and the last suit was commenced in February, 1829, and no opinion (454) is intended to be intimated upon it.
PER CURIAM. Judgment affirmed.
Cited: Poole v. Cox, 31 N.C. 72; Jones v. Hays, 38 N.C. 509; Pickens v. Miller, 83 N.C. 547; Commissioners v. Nichols, 131 N.C. 502; Fidelity Co. v. Fleming, 132 N.C. 336; S. v. Martin, 188 N.C. 121.