State ex rel. Jones v. Biggs, 33 N.C. 412, 11 Ired. 412 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 412, 11 Ired. 412

THE STATE TO THE USE OF JUSTICE B. JONES vs. JOSEPH D. BIGGS.

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.

The cases of Armistcad v Hmramond, 4 Hawks, 339, and Governor v Twilty, 2 Hawks 5 and 1 Dev 153, cited and approved.

Appeal from the Superior Court of Law of Beaufort County, at the Spring Term 1850, his Honor Judge Bailey presiding.

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 1erm 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 bands in January 1835, and thence from time to time to 1S40, as evidence of the amount of the estate, and oflhe 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, and the relator submitted to a non suit and appealed.

Rodman, J. TV. Bryan andJ. II. Bryan, for the plaintiff.

Biggs, for the defendant.

Ruffin, C. J.

The Court is of opinion, that the evidence was improperly excluded. The returns ofihe guardian stand on the same footing with an inventory by an administrator, which has been repeatedly held to be admissible to charge the administrators’ sureties, at the instance of creditors or next of kin. Armistead v. Harramond, 4 Hawks 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 re« turn of satisfaction by a sheriff, whereby his sureties are bound. Governor v. Twitty, 2 Hawks 5. and 1 Dev. 153. These returns constitute natural evidence, arising out of the ordinary course of business, to charge the guardian, and. therefore, they tend to shew the extent of the relators’ loss by the subsequent insolvency of the guardian, and by consequence,ofthe damages whichbypossibilifyarosefrom 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 againt 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.