78 N.C. 177 | N.C. | 1878
By statute, Rev. Code, ch. 19, sec. 8, the bond of the Superior Court clerks was conditioned "for the safe keeping of the records of their respective courts, for the due collection, accounting for, and paying all moneys which may come into their hands by virtue of their office, and for the faithful discharge of the duties of their office in all respects whatsoever." Under this and similar provisions in official bonds, the officer has been held by repeated decisions responsible, not only for those duties particularly specified in the condition, but for such duties as have relation to and naturally connect themselves with the office. If new duties are imposed, they attach to the office at once, and he becomes liable for their proper performance, and the liabilities of the sureties will be measured by the terms of their undertaking, which will be construed to include, not only express duties of their principal, but those naturally implied and connected with his office. The contract and considerations of public policy both are considered in fixing the responsibility of public officials and their bondsmen, in the application of which principles it has been held that clerks of (179) the court are responsible as insurers for moneys received by virtue of their office, as well as the other ordinary duties, and that nothing but payment will discharge them and their sureties.Commissioners v. Clarke,
The act of 1868, C. C. P., sec. 137, requires a clerk of the Superior Court to enter into bond, conditioned "to account for and pay over, according to law, all moneys and effects which have come or may come into his hands by virtue or color of his office, and shall diligently preserve and take care of all books, records, papers, and property which have or may come into his possession by virtue or color of his office, and shall in all things faithfully perform the duties of his office as they are orthereafter shall be prescribed by law."
The clerk executed his bond with the defendant as one of his sureties, conditioned as follows: "To account for and pay over, according to law, all moneys and effects which have come or may come into his hands by virtue or color of his office, and shall diligently preserve and take care of all books, records, papers, and property which have come or may come into his possession by virtue or color of his office, and shall in all things faithfully perform the duties of his office as they are or shall hereafterbe prescribed by law," dated 31 August, 1869. *121
On 21 December, 1870, the Legislature, Private Laws 1870-71, ch. 6, imposed on the clerk of the Superior Court of New Hanover the duty of issuing an inspector's license to any competent person, for the city of Wilmington, who shall first file with the said clerk a good (180) bond and pay the license tax. The clerk is further required to keep said bond as a part of the records of his office and to pay over to the treasurer of the city of Wilmington for the use of said city, within thirty days, the amount so received for any such license. It is for the nonpayment of such amount that this action is brought on said clerk's official bond. The defendant says this default is not covered by his undertaking. This question must be decided from the contract of the defendant and such considerations of public policy as are applicable, and from the true intent and meaning of the parties at the time the undertaking was entered into. We were referred to no authorities, and we have found none directly in point. The defendant's counsel cited Eaton v. Kelly,
PER CURIAM. Reversed.
Cited: Wilmington v. Nutt,