State ex rel. Commissioners of Wake County v. Magnin, 78 N.C. 186 (1878)

Jan. 1878 · Supreme Court of North Carolina

78 N.C. 186

State on relation of THE COMMISSIONERS OF WAKE COUNTY v. ALBERT MAGNIN, and others.

Bounty Treasurer--Action on Official Bondby County Commissioners' —Sufficiency of Complaint.

1. An action upon the official bond of a County Treasurer for the recovery of money due the County collected by him. anl not p lid or is properly brought in the name of the Board of Commissioners of the County.

:2. In such action, where the complaint alleged the execution of the bond and that the defendant collected the money as Treasurer, &c., and there was no allegation that the defendant was Treasurer at auy time not covered by the bond ; field,'that the complaint substantially alleged that the money was collected during the term covered by the bond and was sufficient.

Civil Action tried at Eall Term, 18(77, of Wake Superior •Court, before McKoy, J.

This was an action on the bond of the defendant Magnin .as Treasurer of Wake County, iri which the plaintiff alleged the execution of the bond in the penal sum of $52,000 conditioned that the said Magnin during his continuance in •office shall faithfully execute the duties thereof, pay out all moneys which may come into his hands and render a true account of the same when required by law. It was further .alleged that Magnin as Treasurer aforesaid had collected $1111,36 and had failed to pay over the same as required by law.

The defendants demurred to the complaint and assigned as cause, (1) that the Board of Commissioners were not the proper relators to institute this action, and that the County 'Treasurer should have been the relator, and (2) that it is not alleged that the money which was collected by Magnin .as Treasurer of Wake County, and which it was averred that he failed to pay to the relators, was so collected by him by virtue of bis appointment to said office for the same term of said office for which the bond declared on was conditioned that said Magnin should faithfully execute &c. His Honor overruled the demurrer and the defendants appealed.

Same counsel as in preceding case.

Reade, J.

The first ground for demurrer, that the County Commissioners are not the proper relators, is overruled! for the reason stated in a case between the same parties at this term, oMe 181.

The second ground for demurrer, that it is not alleged in the complaint that the money was collected during the term covered by the bond, is overruled; for the reason that it is so alleged substantially. It is not alleged that he was County Treasurer at any time not covered by the bond, and it is alleged that he collected the money “ as Treasurer.” There is no error. This will be certified to the end that the defendants may answer, if so advised.

No error.

Per Curiam. Judgment affirmed.