State ex rel. Shuster v. Perkins, 46 N.C. 325, 1 Jones 325 (1854)

June 1854 · Supreme Court of North Carolina

46 N.C. 325, 1 Jones 325

STATE ON THE RELATION OF J. P. SHUSTER AND WIFE, v. EDMOND H. PERKINS, ET. AL.

Where, in the order of a County Court, appointing a guardian, the name, Margaret is by mistake inserted as that of the ward, instead of Miranda, a-bond taken according to the proper requisitions, with the right name recited, will, under the operation of the act of 1842, ch 61, be sustained as an official bond.

This was an Action of Debt, tried before his Honor Judge Bailey, at the Spring Term, 1854, of Pasquotank Superior Court.

The feme relator, Miranda, was the only child and orphan of Henry Taff, deceased, in March, 1838, when the Term of Pas-quotank County Court was held. Since that time, to wit, in the year 1850, she intermarried with the other relator, J. P. Shuster, at which time she was under the age of twenty-one years. At this term of Pasquotank County Court, (March 1838,) the following entry appears of record: “ Ordered, That E. H. Perkins be appointed guardian to Margaret Taff, orphan, of Plenry Taff, who appeared, and entered into bond, in the sum of $2.500 — E. E. Wilson and N. S. Perkins his sureties.”' The bond declared on, is dated of that term, payable to the State of North Carolina, and is signed by the three individuals mentioned in the above order, to wit, E. H. Perkins, E. E. Wilson and N. S. Perkins: it incites that, “ Whereas Edmond II• Perkins hath been this day, by the worshipful Court of said county, appointed guardian to Miranda Taff, orphan of Henry Taff, deceased,” and is in all respects in the proper and usual form of a guardian bond, and was found by the present clerk among the archives of the County Court of Pasquotank, in its proper place, and is attested by the then clerk of that Court, and on the trial was duly proven.

The plaintiffs were then proceeding to assign breaches of the bond declared on, when his Honor intimated an opinion, that even though the evidence sustained the breaches assigned, the plaintiffs could not recover.

In submission to this opinion, the plaintiffs took a nonsuit, and appealed.

Smith, for plaintiffs.

Martin, for defendants.

Pearson, J.

We are inclined to think, as it was proven that Miranda was the only orphan of Henry Taff, the mistake in calling her “Margaret” upon the minute docket, might be controlled by the general description which is added, i. e., “ orphan of Henry Taff,” or, at all events, that the defendant was estopped under the authority of Iredell v. Barbee, 9 Ired. 250. Without deciding these points, we are clearly of opinion, that the case falls within the operation of the statute, acts of 1842, ch. 61. A guardian has an appointment as distinguished from an office. The statute uses both terms, and the bond, in the words of the statute, “was taken under the sanction of a Court of Record, and purports to be a bond executed to the State, for the performance of a duty belonging to an appointment.” So, the caso is embraced by the words of the statute; and it certainly falls within the mischief intended to be remedied. Persons claiming under guardian bonds, as well as persons claiming under tbe bonds of sheriffs and constables, frequently lost their rights by reason of some defect in the manner of taking the bonds.

Judgment reversed. Venire de novo.