#### STATE OF NORTH CAROLINA Ex Rel. AVERY COUNTY; SMITH EGGERS, Chairman; IRA M. VANCE; J. W. HUGHES; J. H. PRITCHARD and F. P. GUINN, Being and Constituting the BOARD OF COUNTY COMMISSIONERS OF AVERY COUNTY, v. J. D. BRASWELL and THE FIDELITY AND CASUALTY COMPANY OF NEW YORK.

(Filed 22 March, 1939.)

Appeal by defendants from Rousseau, J., at October Term, 1938, of Aveey.

Civil action to recover damages of defendant J. D. Braswell and his bondsman, alleged to have been sustained by reason of malfeasance in office of county accountant of Avery County, heard upon demurrer to complaint.

This is companion action to that entitled Avery County v. Braswell, ante, 270. The allegations of the complaint there set forth in substance are the same as in this action, except in these respects: (1) The term of office here begun 1 January, 1937, and terminated 1 July, 1937; (2) The surety here is the defendant The Fidelity and Casualty Company of New York; and (3) The amount paid Bray Brothers Company as alleged in paragraph 9 is $1,102.50, composed of county vouchers, one on 10 January, 1937, for $200, and the other, 1 February, 1937, for $902.50.

Upon these allegations plaintiffs pray judgment against J. D. Bras-well in the sum of $1,102.50, and against defendant The Fidelity and Casualty Company of New York in the penal sum of the bond to be discharged upon payment of $1,102.50, and for costs.

Defendants demurred to the complaint for that it fails to state facts sufficient to constitute a cause of action against the defendants, or either of them.

From judgment overruling the demurrer, defendants appeal to the Supreme Court and assign error.

Charles Hughes for plaintiffs, appellees.

Byron E. Williams and Johnson & Uzzell for defendants, appellants.

*280WiNbokne, J.

Tbe decision in tbe case of Avery County v. Braswell, ante, 270, is determinative of tbis appeal.

Tbe judgment below is

Affirmed.