{
  "id": 8684228,
  "name": "ANDREW SYME, Adm'r, v. J. N. BUNTING and others",
  "name_abbreviation": "Syme v. Bunting",
  "decision_date": "1884-10",
  "docket_number": "",
  "first_page": "48",
  "last_page": "53",
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      "cite": "91 N.C. 48"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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  "last_updated": "2023-07-14T20:07:30.396726+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "ANDREW SYME, Adm\u2019r, v. J. N. BUNTING and others."
    ],
    "opinions": [
      {
        "text": "Smith, O. J.\nIn an action pending in the superior court of Wake, at fall term, 1869, prosecuted by the solicitor against H. A. Hodge, guardian to one Woodson Carpenter, (a lunatic and the present relator\u2019s intestate) for an account and settlement of the trust estate under the statute, an interlocutory judgment was entered in these terms:\n\u201c This cause, coming on to be heard upon the complaint of the plaintiff, it is ordered and adjudged that George H. Snow be appointed to take an account of said guardianship :\n\u201c That John N. Bunting be appointed receiver to take possession and manage said estate, subject to the orders of this court.\u201d\nBy virtue of the appointment the said receiver, then clerk of the court, by renting and otherwise, came into possession of a fund of several hundred dollars belonging to said lunatic, to recover which the present action is constituted against said Bunting and the other defendants, sureties to his official bond, given to secure the faithful discharge of his duties as clerk, no bond having been required to secure the estate passing into his hands as receiver under said appointment.\nUnder an'order of reference a report was made showing to be in the hands of said Bunting the sum of $383.39 not accounted for, and for which he was liable to the relator. The referee also finds as matter of law, that the official bond of Bunting as clerk, to enforce which the suit is brought, does not cover his liabilities incurred under the appointment as receiver, and that the sureties thereon are not responsible for the default, so that while the relator is entitled to judgment against Bunting personally, he cannot recover against his said sureties. The relator excepted to the referee\u2019s conclusion of law in regard to the obligation of the sureties, which being overruled and judgment rendered in favor of the sureties, the relator appeals.\nThe only question presented for solution is, whether the lunatic\u2019s estate is protected and secured by the official bond of the clerk, upon whom, without naming him as such in the order of appointment, the office was devolved, and whether his sureties undertake for this default.\nThe statute in force when' the bond sued on was given, and with-whose provisions, as stated in the complaint, we assume that it conforms, directs the condition to be that \u201c he shall account for and pay over according to law all moneys and effects which have come or may come into his hands by virtue or color of his office, and shall diligently preserve and take care of all books, records,, papers and property which have come, or may come into his possession by virtue or color of his office, and shall in all things faithfully perform the -duties of Ms office as they novo are or thereafter shall be prescribed by law.\u201d\nThe words used in the concluding clause we have interpreted in Wilmington v. Nutt, 80 N. C., 265, as contemplating the future annexation of such other duties as are germane and appropriate to the office itself, inclusive of such as lie along the shadowy line which marks the distinction between those that are, and those that are not of that character.\nThe terms of the condition measure the obligation assumed in respect to moneys and effects officially received, as being limited to such as pass into the clerk\u2019s hands \u201cby virtue or color of his office,\u201d and as a security for these only. The form of the bond as prescribed in The Code, \u00a772, much enlarges the scope of the obligation, by adding to the words quoted, \u201cor under an -order or decree of a judge, even though such order or decree be void for want.of jurisdiction or other irregularities; \u201d but this provision is prospective, applying to bonds thereafter entered into, and does not effect the responsibilities of the bond now in suit.\nIn Kerr v. Brandon, 84 N. C., 128, in a similar proceeding the clerk of the court, without being designated in his official capacity, was appointed receiver, and the estate of infants committed to his management, and it was held that the appointment was personal and the clerk\u2019s bond was not chargeable with his defalcation or waste; and this, mainly for the reason that the duties devolving upon a receiver differ too widely from those resting upon the clerk and involve such wide responsibilities as not to be deemed to have been in contemplation of the provision of the bond that takes in newly imposed clerical duties. The opinion proceeds upon the ground that the clerk is not mentioned in the statute, but the appointment is to be \u201cof some discreet person,\u201d while in the cases in which official liability is incurred, the officer is specially mentioned in the acts to whom the duties required'may be assigned, and who acts in his official character, named or not named in their performance.\nIn the later case of Rogers v. Odom, 86 N. C., 432, while numerous authorities are referred to distinguishing between the functions exercised by these respective judicial agencies, and it is held that the clerk\u2019s bond was not responsible for funds, not under the control of the court when committed to the custody of the clerk, (appointed a receiver and so named in the order), in the opinion it is intimated that it might be otherwise if the fund was then under the control of the court.\nIt may be observed that while such a burden, as might sometimes be imposed upon the clerk, as in case of a dissolved corporation with large resources, and others not now uncommon, might, if the estate is wasted or impaired by negligence, absorb the penalty of the bond and leave suitors and others unsecured and injured by these officers\u2019 misconduct or loss, the difficulty would be wholly obviated by requiring a bond from the receiver'in amount adequate to afford compensation for persons injured by misconduct in the receiver, while the clerk\u2019s bond would be unimpaired and remain a full security against loss from his default.\nIt can scarcely be presumed that the sureties to such a bond executed it with an understanding that interests, sometimes so complicated and vast, might be committed to the officer for the faithful management of which they were to become liable, where the condition is confined to moneys and effects or papers passing into his hands, \u201c by virtue or color of his office,\u201d and the proper duties of the office are so many and so varied.\nThe general assembly, however, have seen fit to remove this source of controversy by adding to the words we have quoted, \u201c or under an order or decree of a judge even though such order or decree be void for want of jurisdiction or other irregularities,\u201d (section 72,) and by prefixing to the words \u201csome discreet person,\u201d the words \u201cclerk of the superior court, or.\u201d (Section 1585.) .\nThese changes seem to indicate the legislative intent to expand the scope of the clerk\u2019s bond so as to take in and protect the interests confided to his keeping under the appointment of. a receiver, and such will be the extent of the obligation'entered into by the clerk and his sureties in a bond executed since The Code went into operation. Of the wisdom of dispensing \u25a0 with a separate bond from a receiver and adding his to the responsibilities of the clerk, we have nothing to do; but as the law existing and in Torce when the present bond was given does not have such effect, in submission to the rule already adjudged we must hold the sureties, defendants, exonerated from responsibility for the default of the clerk. There is no error and the ruling must be affirmed. It is so adjudged.\nNo error. Affirmed.",
        "type": "majority",
        "author": "Smith, O. J."
      }
    ],
    "attorneys": [
      "Messrs. Strong & Smedes and Pace & Holding, for plaintiff.",
      "Messrs. John Devereux, Jr. and J. IF. Hinsdale, for defendants."
    ],
    "corrections": "",
    "head_matter": "ANDREW SYME, Adm\u2019r, v. J. N. BUNTING and others.\nOfficial Bond of Cleric, liability of before and since The Code\u2014 Receiver.\nThe sureties on a clerk\u2019s official bond, executed before The Code went into effect, are not liable for a default of their principal in the management of a fund which came into his hands as receiver \u25a0where the order of appointment does not name him as clerk. But such bond, under The Code, \u00a7\u00a7 72, 1585, protects interests confided to clerks when appointed receivers.\n(Wilmington y. Nutt, 80 N. C., 265\\Kerr v. Brandon, 84 N. C., 128; Rogers v. Odom, 86 N. C., 482, cited and approved.) \u25a0\nCivil Action, tried at Fall Term, 1884, of Wake Superior Court, before Gudger, J.\nThis action was brought in the name ol the state on relation of the plaintiff administrator^ upon the official bond of the defendant, executed when he was clerk of the superior court. The case was heard upon exceptions to a referee\u2019s report, and from the ruling and judgment of the court below the plaintiff appealed. The facts appear in the opinion here.\nMessrs. Strong & Smedes and Pace & Holding, for plaintiff.\nMessrs. John Devereux, Jr. and J. IF. Hinsdale, for defendants."
  },
  "file_name": "0048-01",
  "first_page_order": 62,
  "last_page_order": 67
}