Waters v. . Melson

Shepherd, C. J.: At the Spring Term, 1873, of the Superior Court of Washington County, the relators were presented by the Grand Jury as infants without guardian, and, upon the petition of the Solicitor, the defendant Melson, the Clerk of the said Court, was appointed receiver of their estates. The question presented is whether the sureties on the official bond of the said Clerk are responsible for his default as such receiver. The language of the order of the Courtis, “That James A. Melson, Clerk of the Superior Court of Washington County, be appointed receiver,” etc., and it is insisted by counsel that the omission of the word ■“as” before the words “Clerk of the Superior Court” is fatal, and that a proper construction of the order is that the said Melson Avas appointed in his individual capacity only. The case of Kerr v. Brandon, 84 N. C., 128, cited by the defendants, 'is no authority for this contention, as the order in that case made no reference whatever to the official position of Brandon as Clerk. We are very clearly of the opinion that the terms of the order sufficiently indi *93 cate the intention of the Court to appoint the said Melson as receiver • in his official capacity, and the only serious question therefore to he considered is whether the Court had authority to appoint him as such and thereby impose a liability upon the sureties to his official bond. The Act of 1868, .ch. 2Q1, which is applicable to this case, was brought forward and .is to be found in chapter 53 of Battle's Revisal. In section 22 of the said chapter it is provided that the Court, at the instance of the Solicitor, may commit the estate of an infant having no guardian, or whose guardian has defaulted, “to some discreet person.” In the Revised Code, ch. 54, section 15, the words employed in a similar provision are “The Clerk-and Master or other discreet person ”; and it is.urged that by thus changing the phraseology the Legislature manifested its intention that such appointments should no longer be conferred upon the officers of the Court, and that their sureties cannot therefore be hold responsible. This very point was pressed with much ingenuity, in the case of Rogers v. Odom, 86 N. C., 432, but the Court (RujffiN, J.), in order “to avoid any misunderstanding in the future,” distinctly declared that it could not be sustained. The Court said: “In this view of counsel we cannot concur, but rather think that the discrepancy between the two statutes resulted from the fact that about that time the office of Clerk and Master was abolished, and hence all mention of it was omitted. The Court cannot but take notice of the fact that since the now statute the Court has been in the habit of bestowing such appointments upon their Clerks, oftentimes against their will, and under the conviction that their bonds afforded protection for the funds and effects committed to them, and that according to the understanding of all parties, both before and after the acceptance of the office of Clerk, the Courts had a.right to do as they have done; hence we con- *94 elude that in such cases the sureties are accountable, the office being taken cum onere” It is urged, however, that the decision in the above case is in conflict with the language we have quoted, but it is difficult to believe that a Judge so distinguished for clearness of reasoning, as well as profound learning, should in the same opinion have committed such an error. There is really no such conflict as is supposed, and this is apparent from the fact that Odom, the defendant, was not appointed by virtue of the statutory provision (sections 21, 22, 46, 47, ch. 53, Bat. Rev.) which the learned Justice was discussing. These provisions relate to the appointment of a receiver at the instance of the Solicitor where a guardian has been removed (section 21), or, as in the case before us, where the Grand Jury have presented an infant without guardian (section 47). In the case referred to, Odom was appointed by the •Judge at term upon the simple petition of the infants by their next friend for the purpose of suing for and collecting insurance money from a foreign corporation which was beyond the jurisdiction of the Court. Such a proceeding, if not irregular, was certainly novel, -and it is jilain that there could have been no presumption that the sureties knew that such appointments had been or would be made, and that they contracted with reference to such a liability. The appointment of Odom was assimilated by the Court to the appointment of a receiver in ordinary actions, as the receivership of a railroad and the like, and it was because there had been no “habit of bestowing such appointments” upon the Clerks in such cases that the Court held that the bond of the said Odom was not responsible. In the language of the Court, such an appointment “could never have been within the contemplation of the sureties when contracting for the fidelity of their principal in his capacity as Clerk.” *95 We are, therefore, of the opinion that there is nothing in the decision in Rogers v. Odom, supra, which conflicts with the deliberate and emphatic declaration of the Court that in cases like the present the Court has authority to appoint and that the sureties are liable. Neither is there anything in Kerr v. Brandon, supra, which militates against this view. Indeed, we are almost induced to infer from the absolute silence of the Court upon the subject, as well as the general tendency of the opinion, that had the Clerk been appointed receiver in his officiál capacity, the Court would have reached a similar conclusion. The decision seems to have been based upon the form of the order and not upon the absence of authority in the Court (as indicated in the head note) to impose the duty upon the Clerk in his official capacity. In consideration of the views we have indicated, there was no error in the refusal of the Court to instruct the jury as requested by the defendants. Neither do we see any error of which the defendants can complain in the charge of the Court; for, conceding that the Court should not have given the general instruction as to what a prudent man would have done under the circumstances (Emry v. Railroad, 109 N. C., 589), the defendants could not have been prejudiced, as the Court properly ruled that the burden was upon them to show that they had used due diligence in investing the money, and upon this point there was no testimony. The judgment must be Affirmed.