Opinion
(December Term, 1859.)
Where the money was paid to the deputy of a clerk and master, after the term of office of his principal had expired, although he was still acting without being reappointed and without giving a new bond, it was Held that this was no breach of the official bond he had formerly given.
DEBT, tried before Caldwell, J., at the last term of BRUNSWICK.
Person for plaintiff. (50)
E. G. Haywood and Strange for defendant.
The plaintiff declared for the breach of the official bond of S. B. Everett, clerk and master in equity of Brunswick.
The bond declared on was executed on 26 October, 1847, at which time said Everett was appointed to the office. He never was reappointed, and never gave any other bond. It appears of record in the archives of the court of equity aforesaid that Everett resigned his office in 1853. In 1848 Samuel Langdon was appointed deputy to the said Everett, and acted as such during the whole time that Everett professed to act, viz., till 1853, at which time Langdon himself was appointed to the office of clerk and master of the said court. In 1852 the sum of $1,498.75 came to the hands of Samuel Langdon by virtue of a decree made in 1849 in the said court of equity, in behalf of the relators, for the sale of real estate. This money was never paid over to Everett, but was kept by Samuel Langdon, and was in his hands when he was appointed in 1853. He has never paid it to the relators of the plaintiff, or to any one else authorized to receive it. Everett died in ___, and S. B. Langdon was appointed executor. In 1847 an order was made for the said Langdon to pay the money to the relators, which, on demand, was not done. The foregoing facts were submitted as a case agreed, and the judgment of the court prayed thereon.
On consideration, the court decided that the plaintiff was not entitled to recover, from which judgment he appealed to this Court.
As the term for which S. B. Everett was appointed clerk and master had expired before the money was paid to his deputy, there is no principle upon which an action can be maintained on his official bond; for, to make out a breach, it is necessary to prove that the money was received during the time covered by the bond. How far Mr. Everett may have subjected himself to the pains and penalties of the law for usurping the office, and acting without being reappointed and without executing the new bond which in case of reappointment he was required to execute, is a subject upon which we are not now at liberty to enter. The case, Chairman v. Daniel, 51 N.C. 444, is put expressly on the ground that the appointment of those officers is for one year, "and until a successor shall be appointed and enter upon the duties of the office," which distinguishes it from the case before us.
PER CURIAM. Affirmed.