State ex rel. Fornell v. Koonce, 51 N.C. 379, 6 Jones 379 (1859)

June 1859 · Supreme Court of North Carolina

51 N.C. 379, 6 Jones 379

STATE to the use of AARON FORNELL AND WIFE v. JOHN KOONCE Administrator.

It was not the intention of the Legislature in the statute, Revised Code, chapter 54, section G, to make it a breach of the clerk’s official bond, to omit entering the names of the justices present in court, appointing a guardian, either on the docket, or on the bond, or both; but that in these particulars the act is merely directory.

AotxoN of debt upon tho official bond of a derlc, tried before Shepherd, J., at the last Term of Jones Superior Court.

The breach of the bond, assigned by the plaintiffs, was, that the defendant’s intestate, one Hammond, was the clerk of the county court of Jones, and that at June Term, 1842, of that court, one Caleb Ilewett, was appointed guardian of the rela-tors, and that said clerk omitted to record on the docket of the court, and on the bond taken from the guardian, the names of the justices of the peace present, when the said appointment was made.

On the trial, the transcript of the record of Jones County Court, for June Term, 1842, was produced, and by that, it appeared that the names of the justices, present in court when the guardian was appointed, were entered on the docket. It appeared that they were not iuserted on the guardian bond.

IBs Honor charged the jury upon several points, to which exceptions were made ; but as both the charge and the exceptions become immaterial, from the view taken of the case in this Court, it is deemed needless to state them.

Yerdict for the defendant. Judgment and appeal by plaintiffs.

MeRae and Green, for the plaintiffs.

■Ilaughton and J. W. Brycm, for the defendant.

Pearson, C. J.

"Without entering into a consideration of the three points made by his Honor in the Court below, it is sufficient to say that, upon a mere general view of the subject, we concur In the result at which lie arrived — that the plaintiff was not entitled to recover. This Court is of opinion that the bond of the clerk does not cover the matter assigned as a breach. That positron, we think, is sustained by the authority of Jones v. Biggs, 1 Jones’ Rep. 364, and the reasoning upon ■which it is founded. Common sense must be invoked to aid in the construction of statutes, and courts should bo careful not to be led, by sticking to the letter, into consequences that are against reason, and such as could not have been intended by the makers of the law. The clerk is required to make a record of, and enter at large on. the docket, the names of the justices who are present at the granting of a guardianship ; and lie is also required to make the same entry on the guardian bond. The purpose of this requirement is to furnish an eas3r means of proving who of the justices were on the bench, in the event that they have been guilty of such negligence, in respect to the sureties taken on the bond, as to be liable to the action of the infant, according to the provisions of the statute. If this was the only mode of proof by which the liability of the justices could be fixed, there would be some reason for supposing that the clerk ought to make himself liable by not furnishing it. Put it being simply a cumulative means of proof, the inference, that it was the intention to subject the clerk to liability for the whole amount of the estate of the infant, is against rea-' son ; particularly, where, as in our case, the names of the justices arc recorded and entered at large on the docket, so as to furnish the proof as to their identity, sufficient to charge them, provided, they have subjected themselves to liability; for it then amounts to this : the clerk is liable for simply omitting to enter the names of the justices ou the guardian bond, although the same matter appears at large on the docket, whereby the entry on the bond becomes mere surplusage! And this too, by way of implication. As is said in Jones v. Biggs supra, “If so great a change in regard to the liabilities of clerks had been contemplated, it is natural to have expected to find the law under the head of “ clerks,” accompanied with a requisition that, the penalty of their bonds should be increased,” and it is also natural to have expected that this heavy liability should be imposed in express terms, like that of the justices, who are guilty of negligence in respect to the sureties taken, and that the clerk should be allowed a fee for making the entry upon his docket, and also upon the bond.

After a full consideration of the subject, we are satisfied that the statute is merely “ directory,” and that it was not the intention of the Legislature to make an omission of the clerk, either in one, or both of these particulars, a breach of his official bond. There is no error.

Pee Cueiam, Judgment affirmed.