#### THE STATE ON THE RELATION OF J. & C. ELLEN vs. SAMUEL ARRINGTON AND OTHERS.

December 1842.

The Clerk of a Court, having' in his possession a bonct of a large amount, which had been deposited in his office by order of the court, and belonged to certain parties to a suit pending in the said court, transferred the bond to one Ricks. In part consideration of the transfer, Ricks gave the Clerk a receipt for a sum of money then in the hands of tho Clerk in his official capacity, and belonging to the relators, of whom Ricks was the guardian.-Afterwards, the amount of the bond was recovered from Ricks by the persons to whom it belonged. Held, that under these circumstances the receipt of Ricks, the guardian, was no bar to an action by the relators on the official bond of the Clerk, to recover the money due to them, and which tho Clerk refused to pay.

Appeal from the Superior Court of Nash comity, at Fali Term, 1842, his Honor Judge Battle presiding.

This was an action of debt upon a bond executed in August, 1834, by the defendants, as sureties of Arthur Whitfield, appointed Clerk of Nash County Court. Pleas, conditions performed, and Statute of Limitations. Upon the trial, the following facts were proved or admitted. In the year 1S35, and prior to the month of August in that year, a sum of money amounting to $210, was paid into the Clerk’s office, belonging to the relators, who were minors. This money was at that time demanded of the. Clerk by John Ricks, then the guardian of the relators, but was not paid to him. On the 19th of June, 1837, the said Ricks, being still guardian, and having received of the said Clerk all of the above sum, except $123 53, purchased of the said Clerk the bond mentioned in the case of Bunting and others v the *100said Ricks, reported in tííe 2d vol. of Dev. & Bat. Eq. Rep. p. 130, and gave in part payment therefor the said sum of $123 53, belonging to his -infant wards, and gave to the said .Clerk his receipt in fall for the same. This receipt was not under seal, but was intended by the parties at the time to be a full discharge of the debt. Ricks was afterwards compelled by a decree of the Supreme Court, to pay over the proceeds of the said bond to the parties properly entitled thereto, and no part of the same was applied to his o.wn use or the use of his wards, the present relators. One of the relators came of age in August, 1839, and the other in February, 1841; and the suit was commenced on the 7th of August, 1841. A demand of the sum claimed-just before issuing the writ, was p.rov.ed. JJpon this case the court was of opinion, that the relators were entitled to recover, and thereupon, a verdict and judgment were rendered for them, .and the defendants appealed.

B. F. Moore for the plaintiff.

Badgef for th.e defendants.

Ruffin, C. J.

This is an action on the official bond of Arthur Whitfield, as Clerk of the County Court of Nash. During the year covered by the bond, the sum of $123 53 was paid to him as Clerk, which belonged to the relators, who were then infant wards of John Ricks. Whitfield had also in his hands a bond given by Bunn and Cooper, for $1106, which had been deposited in his office as a fund belonging to other persons, parties in another suit, which the court had ordered him to collect. On the 19th of June, 1837, Whitfield assigned that bond to Ricks; and part of the consideration therefor was the said sum of $123 53 belonging to the relators, and Ricks'then gave his receipt therefor, as being paid by Whitfield to him, as the guardian of the relators. Afterwards, in 1838, at the suit of the per-spns for whose benefit the bond had been given, Ricks was *101compelled by a decree of the Court of Equity to surrender the bond or pay over its proceeds to those persons, on the ground that he had notice of their interest in it, and that Whitfield was misapplying it; as may be seen in the reported case of Bunting v Ricks, 2 Dev. & Bat. Eq. 130. No part of the proceeds of the bond was applied to the use of the relators ; and they afterwards cowing of age demanded payment and then brought this action, which was tried on the pleas of conditions performed and statute of limitations, and a verdict given under the direction of the court for the principal and interest due the relators; and from the judgment the defendants appealed.

The court is of opinion the judgment was right. The action was brought within due time ; being less than three years after the elder of the relators came of age. On the other plea, the only objection urged is, that the guardian became chargeable to his wards on the transaction between him and Whitfield. But, supposing Ricks to be thus chargeable, it does not follow that Whitfield was thereby discharged. A guardian may become liable for a debt to the wards, in instances in which the debtor may not be discharged; as from negligence to collect or bring suit within a proper time, or the like. Both may be responsible to the infants. No doubt, a guardian has authority to receive money owing to his ward. But it is a different question, whether the guardian can discharge the debtor without receiving satisfaction, whereby the insolvency of the guardian would cause a loss of the debt altogether. But that need not be considered; for here the receipt given by Ricks was not under seal, and is susceptible of explanation ; and it turns out that, although intended at the time by Ricks and Whitfield as a payment, there was, in fact, no payment at all. It was held that the bond was not effectually transferred by Whitfied, and it was decreed still to belong to the original proprietors, and consequently taken from the relators. How, then, have they been satisfied by Whitfield for the money he received of theirs ?• This was no more a payment than if received in a *102forged bond, or counterfeit money. Whitfield, therefore, reliable for the money in his hands ; and. if he does so, of course do his sureties.

Per ChmiAEs. Judgment affirmed.