{
  "id": 8684917,
  "name": "STATE on relation of DENNIS COX, Executor of Thomas Cox, v. J. A. BLAIR, Administrator of B. B. Bulla, and others",
  "name_abbreviation": "State ex rel. Cox v. Blair",
  "decision_date": "1877-01",
  "docket_number": "",
  "first_page": "78",
  "last_page": "81",
  "citations": [
    {
      "type": "official",
      "cite": "76 N.C. 78"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "75 N. C., 505",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8698289
      ],
      "opinion_index": -1,
      "case_paths": [
        "/nc/75/0505-01"
      ]
    },
    {
      "cite": "73 N. C., 255",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8689454
      ],
      "opinion_index": -1,
      "case_paths": [
        "/nc/73/0255-01"
      ]
    },
    {
      "cite": "63 N. C., 508",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11277990
      ],
      "opinion_index": -1,
      "case_paths": [
        "/nc/63/0508-01"
      ]
    },
    {
      "cite": "75 N. C., 505",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8698289
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/75/0505-01"
      ]
    },
    {
      "cite": "63 N. C., 508",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11277990
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/63/0508-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 422,
    "char_count": 7209,
    "ocr_confidence": 0.423,
    "pagerank": {
      "raw": 2.9754136323435657e-07,
      "percentile": 0.8506335697563835
    },
    "sha256": "5d30f6cb3dcb2debd5860f7f7ed371f29f04189bc31959084815326eb8814262",
    "simhash": "1:2d5d477388cdfcc0",
    "word_count": 1277
  },
  "last_updated": "2023-07-14T21:21:57.000998+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE on relation of DENNIS COX, Executor of Thomas Cox, v. J. A. BLAIR, Administrator of B. B. Bulla, and others."
    ],
    "opinions": [
      {
        "text": "Bynum, J.\nIn proceedings for partition the Court may authorize any officer thereof, or any other competent person, to be designated in the decree of sale, to make the sale. Bat. Rev. ch. 84, \u00a7 15.\nIt is most usual to appoint the Clerk of the Court for that purpose, because his responsibility is secured by his oath and his bond; and because as an officer of,the Court, he is under its immediate control. Hence, nothing to the contrary \u2022cleai\u2019ly appearing, where the Clerk is appointed to that duty, it is the presumption that he is appointed in his official capacity, whether he is designated in the order as Clerk or not. State ex rel McNeill v. Morrison, 63 N. C. 508.\nThe Clerk here having made the sale\u2019 and collected the money in pursuance of an order of the Court, held it in his official character.\nThis is the only question raised by the pleadings, though it was insisted in the argument that the other tenant in comnion was a necessary party to the action. We do not think so. The statute declares that all persons having an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs. C. C. P., \u00a7 60. Here,'the fund is fixed in amount and the plaintiff\u2019s share is a matter of mere clerical computation. No account is necessary to be taken between the tenants and each may sue for his specific part, as well as if it was a specific legacy. There is a clear distinction between this case and that of a distri-butee of an estate. There, before a judgment can be rendered, it is generally necessary to take an account of the administration and of the respective liabilities of the dis-tributees for advancements, &c., before -it can be ascertained what may be due. The Courts in such cases hold that all the distributees of the estate are necessary parties to the proceeding, to avoid- a multiplicity of suits and to adjust and determine the rights of all in the same action. In our ease, the amount due to each tenant is ascertained and their rights of action are several.\nIt was further objected that the decree of 1874, directing the fund to be paid to the parties entitled, was made without notice to the defendants and was void as to them-. This oi*i lor was not necessary to the plain tiff\u2019s right of action; but what is that to the defendants ? They owe the money, and can have no voice in adjusting the rights of the partitioned between themselves.\nIt is again insisted for the sureties on the' official bond of the Clerk, that according to the pleadings, the Clerk was ini no default, as he had to the time of his death performed all the orders of the Court, and if there was any default, it was on the part of the administrator of Tulla, for which he must be answerable on his administration bomb JBut the fact is overlooked by the counsel, that the defendants joiutly demurred to the complaint and assigned as one cause, that the plaintiff did not set forth a sufficient cause of action. The demurrer was overruled, and the sureties did not appeal and did not put in an answer. The plaintiff' was therefore entitled to judgment against them. At the next term of the Court,the administrator, Blair, did answer, and the utmost that the sureties of Bulla can ask, is, that we should treatJBlair\u2019s answer as their answer. Treating it thus, the answer admits the collection of the money by Bulla and alleges that it was stolon from Bulla, without his default. Here then, is the admission of the Clerk\u2019s default in office, for ithas been expressly held by this Court, that the loss of the money in the manner alleged, is an official default and breach of his bond, for which the sureties are liable. Havens v. Lathene, 75 N. C., 505 ; Commissioners of Bladen v. Clarke, 73 N. C , 255.\nSo, quacunque via data, whether upon the demurrer or the admissions in the answer, the plaintiff' was entitled to judgment.\nThere is no error.\nPer Curiam. Judgment affirmed.",
        "type": "majority",
        "author": "Bynum, J."
      }
    ],
    "attorneys": [
      "Messrs. Tourgee and K Gr. Haywood, for plaintiff.",
      "Messrs. Mendenhall <f* Staples and' Smith Sg Strong, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE on relation of DENNIS COX, Executor of Thomas Cox, v. J. A. BLAIR, Administrator of B. B. Bulla, and others.\nClerk of Superior Court -- Breach of Official-Bond.\n1. A Oler* of the Superior Court,- appointed to sell'real- estate in a proceeding for partition, acts in his official capacity, even though he is not designated as Cleric, in the order of appointment And,\n2. The loss of money collected by him, in pursuance thereof, by being stolen from a safe in which it was deposited, is an official defaujt and breach of bond, for which his sureties are liable.\n(State ex rel. McNeil v. Morrison, 63 N. C., 508; Commissioners of Bladen v. Clark, 73 N. C., 255; and Havens v. Lathene, 75 N. C., 505, cited and approved.).\nCivil Action, for breach of official bond, tried at Spring Term, 1876, of Randolph Superior Court, before Kerr, J.\nThe complaint, filed against Blair as administrator of Bul-la, deceased, late Clerk of the Superior Court of said County, and the other defendants, (sureties on the official bond of said Bulla,) demanding payment of the sum of $242.17 balance due, alleges:\nThat Bulla was elected and qualified as Clerk in 1868 and executed a bond with the other defendants as sureties. That in 1871, one E. B. McCain brought an action against the plaintiff\u2019s testator, praying that a certain house and lot in the town of Asheboro, might be sold, and the proceeds divided'between them, to the end, that they might have partition of the same. That in July 1871, said Bulla, under a decree of the Court, sold said property for $505. That said sale was reported to Court and confirmed. That he collected the purchase money in full in January, 1872. That Cox died in July, 1871, and Bulla died in July 1872. That in April, 1874, the Court decreed that the money arising from said sale be paid to the parties entitled. That a demand was made on defendant Blair and on the present Clerk of the Court, the successor of Bulla, for payment of the money, before the commencement of this action.\nDefendants demurred and' assigned as cause : That it did not appear from the complaint that Bulla was ordered as Cleric of the Court to sell the land; nor that he sold the same, \u25a0or collected the money as Clerk; nor that he, as such, was ever ordered to pay the money to the parties ; nor that Bulla as Clerk had ever broken the conditions of his- bond, so as to render his sureties liable.\nThe demurrer was overruled and thereupon the defendant Blair, Administrator, answered over, alleging, that the identical money which had been collected by his intestate .from the purchase of said land, was deposited in a safe. That the safe was broken open and this money stolen, together with other monies and valuable papers, belonging to \u2022suitors in said Court, and that this occurred without the laches of his intestate and notwithstanding his great prudence and care.\nThe other defendants filed no answer.\nThe evidence sustained the material allegations of the complaint and His Honor held, that there was a breach of the oficial bond and that defendants were liable. Defendants excepted. The jury rendered a verdict for the plaintiff. Judgment, and appeal by defendants.\nMessrs. Tourgee and K Gr. Haywood, for plaintiff.\nMessrs. Mendenhall <f* Staples and' Smith Sg Strong, for defendant."
  },
  "file_name": "0078-01",
  "first_page_order": 90,
  "last_page_order": 93
}