Cheek v. Davidson, 36 N.C. 68, 1 Ired. Eq. 68 (1840)

June 1840 · Supreme Court of North Carolina

36 N.C. 68, 1 Ired. Eq. 68

ROBERT T. CHEEK et al. vs. WILLIAM DAVIDSON et al.

Where an action was brought at law against the sureties to a guardian bond, given to secure the estate of four wards, in which the breach assigned was, that the guardian had wasted the estate, and failed to account for, and pay over to, the wards their property; and the defendants confessed what they called a partial judgment, when it was agreed by the parties that the plaintiffs’ additional claim should be referred to arbitrators, and their award to be made a rule of court, it was held, that a paper, returned by the arbitrators, in which they made no award upon the matters referred to them, but only a statement, from which it appeared that they attempted to take the separate accounts between the guardian and his four wards ab initio, taking no notice of the partial judgment, and awarding no sum definitively against the defendants, was a calculation made to aid the court in its ulterior proceedings, rather than a definite award; and that a bill could not be sustained in equity to give the plaintiffs the benefit of it as an award.

Alexander Grier was appointed guardian to the plaintiffs, four in number, and executed one bond with the defendants, as his -sureties, for the faithful performance of his duty to his four wards. He then wasted much of the estate of his wards, and became insolvent; upon which an action of debt was brought on the bond, against the sureties only; and the breach assigned was, that the guardian had wasted the estate, and failed to account for, and pay over to, the wards their property. To this action the defendants plead that the conditions of the bond had been performed; and thereupon a reference was made by the Court to the clerk, (under the act of Assembly, ] Rev. Stat. ch. 31, sec. 119,) to take an account, and report the amount due .the wards. The clerk accordingly made his report; which was in part excepted to by the defendants; but at the fall term, 1831, of the Superior Court of Mecklenburg, where the suit was pending, the defendants (as the records state,) came into open court, and confessed a partial and interlocutory judgment for $2,335-78 cents.” The Court then ordered, by consent of the parties, that the residue of the claim of the plaintiffs, covered by the exceptions, should be referred to James M. Hutchinson and Washington Morrison, with leave to choose an umpire, and their award to be a rule of court. The arbitrators filed a paper, which, after stating the name of the suit, and its reference to them, proceeded: “ Who report and award, that' there was due the petitioners, at the division of the estate, on the 21st day of December, 1821, per clerk’s report, the sum of $2,778 03.” The paper then goes on to shew the state of' the accounts between the guardian and his four wards ab initio, shewing that the guardian was in advance to one of his wards, but was indebted to the other three in different sums. It then concludes thus: “ We also report and award, that the said guardian, Alex. Grier, has expended money in the purchase of necessaries for, and the payment of debts against, the widow, Mary Smart, the mother of the petitioners, since the division of the estate, to the amount of $570 69 cts.; and which are embraced in the exceptions; and which were paid by him, under the decree of the Court of Equity, allowing her one hundred and twenty-five dollars per year, during her natural life; and which the defendants are entitled to a credit for.” Upon this paper being filed, a motion was made for a final judgment according to the award; which was refused by the Court, on the ground that the former judgment in the cause, at law, put an end to all controversy in the cause; and there was an entry on the record of the suit, which concludes thus: “ Dismissed at the costs of the defendants.”

This bill was filed by the plaintiffs, to have the benefit of the supposed award decreed to them in the Court of Equity. The defendants, in their answers, admitted the facts stated in the bill; but contended that a Court of Equity had no jurisdiction of the case. They also relied on the act of Assembly, (1 Rev. Stat. ch. 65, sec. 7,) barring demands against the sureties of guardians after three years.

Badger and Alexander for the plamtifis.

D. P. Caldwell for the defendants.

Daniel, Judge,

after stating the case as above, proceeded as follows: If four separate actions of debt, one for each ward, had been brought on the guardian bond, as might have been done by virtue of the act of Assembly, 1 Rev. Stat. ch, 54, sec. 6, then the clerk could have taken the separate account of each ward with the guardian, and a proper judgment might have been rendered in each case. Instead of suc^ a proceeding, the wards brought but one action on the bond, and assigned for breach thereof, that the guardian had failed to settle and pay over to all or any of them their property. It appears, that there never has been any judgment rendered for the plaintiffs on the bond, for the penalty to be discharged by the payment and satisfaction of any damages found, either by a jury, or the report of the clerk. The defendants (the sureties^ confessed to the plaintiffs what they called a partial judgment; and then it was agreed by the parties that the plaintiffs’ additional claim, as to so much of the clerk’s report as had been excepted to' by the defendants, should be referred to arbitrators; .and their award was to be made a rule of Court. The arbitrators have not made any award upon the matters referred to them — but return a statement, from which it appears that they attempted to take the separate accounts between the guardian and the four wards ab initio. One of them they bring in debt to the guardian, while it would appear that the guardian is indebted to the other three wards in different sums of money. They go on to state, that the guardian is entitled to a credit of $570 69 cents, for advances to the plaintiff’s mother; but how this credit is to be applied to the different claims of the wards, the arbitrators leave us in the dark. To this paper, returned into Court, the two arbitrators have signed their names. But in it there is no notice taken of the partial judgments; and there is no sum definitively awarded against the defendants. It appears to be a calculation made to aid the Court in its ulterior proceedings in the cause, more than a definite award. Without deciding whether the case stated in the bill, could be supported in this Court, (if made out,) we think the bill must be dismissed, for the want of proof of any award made, to sustain the case stated in the bill. Whether the plaintiffs can now proceed at law on the bond, is not for us to decide. The bill must be dismissed.

Per Curiam. Bill dismissed.