Opinion
December Term, 1850.
The official returns of a guardian to the County Court of the state of his account with his ward are admissible evidence in an action against the clerk of the County Court for neglect of duty in not issuing a scire facias, as required by law, to cause the guardian to renew his bond.
APPEAL from the Superior Court of Law of BEAUFORT, at Spring Term, 1850, Bailey, J., presiding.
Rodman, J. W. Bryan and J. H. Bryan for plaintiff.
Biggs for defendant.
The action is debt on the bond given by the defendant as the clerk of the County Court of Martin, and the breach assigned is in not issuing a summons to one Redding from January Term, 1838, to renew his bond as the guardian of the relator, to which office he was appointed at January Term, 1836, and in virtue thereof received large sums of money and other effects belonging to the relator, by reason whereof, and the subsequent insolvency of the guardian, the relator sustained damages from the loss of the money and other effects. The defendant pleaded, conditions performed and non damnificatus; and on the trial the relator offered the returns made to the County Court by the guardian of the estate of the ward in his hands in January, 1835, and thence from time to time to 1840, as evidence of the amount of the estate, and of the amount of damage sustained by the relator from the insolvency of the guardian and alleged omission of the defendant. But upon objection on the part of the defendant, his Honor rejected the evidence, (413) and the relator submitted to a nonsuit, and appealed.
The Court is of opinion that the evidence was improperly excluded. The returns of the guardian stand on the same footing with an inventory by an administrator, which has been repeatedly held to be admissible to charge the administrator's sureties, at the instance of creditors or next of kin. Armistead v. Harramond, 11 N.C. 339. They are acts required by the law from those persons in the discharge of their official duties, as a mode of charging them upon their own oaths, contemporaneously with their getting the effects in hand or nearly so. They establish the indebtedness of the administrator or guardian, at least prima facie, and are much like the return of satisfaction by a sheriff, whereby his sureties are bound. Governor v. Twitty, 9 N.C. 5; s.c., 12 N.C. 153. These returns constitute natural evidence, arising out of the ordinary course of business, to charge the guardian, and therefore they tend to show the extent of the relators' loss by the subsequent insolvency of the guardian, and, by consequence, of the damages which by possibility arose from the laches of the defendant. It is not like an indebtedness established by judicial sentence, which is in invitum. But this is the party's own act against his interest, done not only in the ordinary course of business, but in the most solemn manner in the prescribed course of official duty.
PER CURIAM. Judgment reversed, and venire de novo.
(414)