#### STATE TO THE USE OF DANIEL RICHARDSON & WIFE vs. E. F. SMITH, *et al.*

(The first point in this ease is the construction of the decrees of the Court of Equity, and cannot well be condensed.)

Where a Clerk and Master in Equity misapplies a fund of which one is entitled to the annual interest during his life, and his wife afterwards, during her life, in case she *survived:*— Held, that the husband and wife can recover on the official bond for the year current at the date of the misapplication to the extent of the interest.

ActioN of Debt, tried before bis Honor, Judge Bailey, at tbe Spring Term, 1854, of Perquimons Superior Court.

The question of the defendants’ liability on the bond of 1846, which arose also in the case having been disposed of in the foregoing case of White v. Smith, another question remains to be considered in this case; what interest the relators have in the fund for which they are liable, and their right to sue for the same? The feme plaintiff was the widow of John A. Morris, whose land was ordered to be sold, and as such was entitled to a. share of the fund to the value of her dower, which she sold to one Brooks: but she became further entitled to an interest in the fund, for her life, by the birth of a posthumous child and its death, after the petition was filed for the sale of property. After the filing of the petition she intermarried with Daniel Eichardson.'

The following orders were made in the court of Equity in relation to this interest of Mrs. Morris, now Mrs. Eichardson, viz, at Spring Term, 1848: “ It appearing that the money was paid into Court (ordered) that title be made.”

At the same term (Spring Term, 1848) it was “ decreed that the master pay over to G. W. Brooks the amount decreed to the petitioner Elizabeth, in lieu of dower, and that the master lend out the residue claimed by the said Elizabeth C. and pay over the interest annually during the joint lives of Eichardson and his wife to the said D. Eichardson, and should the said Elizabeth C. survive the said Daniel, then to pay over the interest annually, during her life, to the said Elizabeth.”

*9At Spring Term, 1850, tbe final decree was made in the cause, as follows: “ It is ordered, adjudged and decreed, that the clerk atod master in Equity collect all. the residue of the sales of the lands of John A. Morris, deceased, and after paying out of the said fund, all the. costs that have been taxed by order of this Court in this cause, that he pay over the -residue to Thomas D. White, who, with his wife Mary, as heir at law of John A. Morris, deceased, is entitled to one undivided half part of the said funds : and as the *cestui que trust*in an assignment to J. C. B. Ehringhaus, by Mordecai Morris, the other heir at law of John A. Morris deceased, is entitled to the other undivided half of the said fund, upon the said Thomas D. White executing his bond payable to the clerk and master in the like sum that he may-pay over to the said White, conditioned for the payment annually unto Daniel Richardson of the interest at the rate of six per cent per annum upon such sum as may be, by virtue of this decree, paid to him, said White, for and during the joint lives .of Daniel Richardson and his wife Elizabeth C., and unto Elizabeth 0. Richardson for and during her natural life if she should survive her said .husband.”

An amount sufficient to cover the interest accruing between the Spring and Eal'l Terms of 1848, was paid by Smith to Richardson.

The notes taken for the sale of the land by the master, bore interest from January, 1846. ^

The breach assigned, is the misapplication of the interest which had accrued upon the sale notes up to Spring Term, .1848, and the misapplication of the principal fund, in which -the relators are interested, .to the extent of the interest which would afterwards accrue thereon, during the life of Mrs. Richardson. Ilis Honor intimated an opinion that plaintiffs could not recover ; whereupon, they submitted to a nonsuit, and appealed. -

*.Smith,*for plaintiffs.

Heath, for defendants.

*10PeaksoN, J.

The ground upon which his Honor based his opinion is not stated. In the argument, besides the two grounds taken to sustain it which were taken and have been disposed of ip the case of the State to the use of White v. Smith, delivered at this Term, (ante 4) a third ground was taken : that by the decree at Spring Term, 1850, the interest which had accrued upon the fund as well as the fund itself, was directed to be paid over to White ; so that the cause of action in regard to the interest, as well as the principal, vested in him: and Eichardson and wife must look to him for the interest.

The decree is expressed in very general terms, but taking it in connection with the former orders, and the rights of the parties as declared and settled, there can be no doubt as to the fact that it does not include the interest which had accrued, and it is evident that it was worded upon the supposition that the interest had been, or ought to have been paid over to Eichardson and wife. White had no right to receive, and had no pretence of claim to such interest. He was only entitled to the principal, subject to the right of Eichardson and wife to have the interest during the life of Mrs. Eichard-son. The bond which White was required to give was to secure the annual payment of the interest which might accrue, and has no reference whatever to the interest which had already accrued and In which White had no concern. So as White has a cause of action for the misapplication of' the principal which belonged to him, subject to the right of Eichard-son and wife to have the interest during her life, the latter upon the same grounds, have a cause of action for a misapplication of the interest which had accrued at the time of such misapplication, and constituted part of the fund so misapplied and drawn from the office : and also for the misapplication of the principal fund in which they were interested to the extent of the interest.

*'Venire de novo.*

Pee Cuiíiam.