36 N.C. 68 | N.C. | 1840
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. 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 such a proceeding, the wards brought but one action on the bond, and assigned (70) 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 has been excepted to by the defendants, should be referred to arbitrators, and their award was to be made a rule of court. Arbitrators, have not made any award upon the matters referred to them, but returned 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 for advances to the *52 plaintiffs' 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 definitely 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 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.
(71)