State ex rel. Topping v. Windley

Davis, J., (after stating the case). It is the duty of Clerks of the Superior Courts to appoint guardians. The Code, § 1586; to take and approve their bonds, requiring two or more “ sufficient sureties,” § 1574; to see that the bonds are renewed, §§ 1581 and 1582; and if they fail to take “good and .sufficient sureties” they are made liable “ for all loss and damages sustained for want of security being taken.” § 1614. Formerly the Superior and County Courts had cognizance of all matters concerning orphans and their estates, and the Judge or Justices were liable for all damages resulting from a failure by them to take sufficient bond; and in the old County Courts, Clerks were required to record the names of Justices on the bench accepting guardian bonds. Clerks and the sureties on their official bonds are now liable, as the Jus [10] tices were under the^old system, for any loss or damages resulting from a failure to take good bonds, and the record of the appointment of the guardian is sufficient evidence of such appointment. Davis v. Lanier, 2 Jones, 307. So there is nothing in the 1st exception of the defendants. The 2d, 3d and 4th exceptions, relating to the sale of the ward’s land in the County of Hyde, are equally unfounded. If the Clerk failed to take a sufficient bond he is liable for all loss' by reason thereof, and the measure of damages is the amount of the principal received by the guardian, with compound interest on the principal up to the time of the ward’s arrival at full age. The guardian bond would be liable for what the guardian, as such, collected or received for his ward, and neither he nor his sureties would be heard to say that he improperly received it, or that it was not the property of his ward. The record shows a sale of the ward’s property by the guardian, and the receipt of the proceeds by him. He has failed to account for it to the relator, and the defence sought to be set up cannot be maintained. Davis v. Lanier, supra; Humble v. Mebane, 89 N. C., 410. The ruling of the Court upon the 5th exception must stand. When a guardian keeps no account, and the burden is devolved upon the ward of hunting up the evidence to charge him, the general rule is that he will not be allowed commissions, which are intended as compensation for the proper discharge of his duties, and there is nothing in this case to induce a departure from the rule. No returns were made, and it does not appear how the ward’s funds were used. Finch v. Ragland, 2 Dev. Eq., 141; Burke v. Turner, 85 N. C., 500; Grant v. Reese, 94 N. C., 720. The report of the referee was properly modified by the direction of the Court in conformity with the 6th exception. The legal rate of interest in the State is six per cent., and no [11] more can be allowed, except as provided in § 3835 of The Code, and this disposes of the only exception of the plaintiff. The 7th exception is disposed of with the 4th, and cannot, he sustained. All the exceptions to the evidence were properly overruled. The witness Wm. J. Bullock was competent to prove the-insolvency of the sureties, and his testimony in regard to the payment of rent was immaterial, as it was a part of the $83-which, it was admitted, went into the hands of the guardian. There is no error.