#### THE STATE, UPON THE RELATION OF MARY J. POOL *vs.*JOHN C. EHRINGHAUS.

Where a Clerk and Master has received money in his office under a decree of the Court, and used it, and afterwards pays it out to a person, whom he thought entitled to receive it, but who in fact was not so, he is liable to the party properly entitled, not only for the principal received, but also for interest thereon up to the time of the payment to such party.

Appeal from the Superior Court of Law of Pasquotank County, at the Fall Term, 1847, his Honor Judge Dick presiding.

This was an action of debt on the official bond of the defendant as Clerk and Master of the Court of Equity of Pasquotank County.

The facts were submitted to the Court upon the following *case agreed.*

At the Fall Term, 1835, on the petition of Samuel Lamb, and his wife, and Mary J. Pool, the present plaintiff, who was then a minor, and appeared by her next friend, Jesse L. Pool, an order was made by the Court of Equity for Pasquotank County, for the sale of a tract of land, held by them as tenants in common, and at the Spring Term of the Court succeeding, a report of the sale was filed and confirmed, for the sum of $750. At the Spring Term, 1838, an order was made, directing the Clerk and Master to collect the money, which the defendant did. At the Spring Term, 1839, on a petition filed by Lamb and his wife, an order was made directing the Clerk to pay Mr. Lamb his moiety of the money arising from the sale, and which was then in office. On the 5th of September, 1S39, without any order of Court, under the belief that Jesse L. Pool was the guardian of his daughter Mary Jane Pool, the defendant paid over to him, as such guardian, the sum of $434 94, which was the principal and *interest*due to. Mary J. Pool,, *up to that time.*

*8The action is in debt on the official bond of the defendant ; and the only question presented in the case is whether the plaintiff is entitled to interest on the amount due her, from the time the money was wrongfully paid to J. L Pool.

Upon the case agreed, the Judge below being of opinion that the defendant was liable for the interest claimed by the plaintiff, gave judgment accordingly; and from this judgment the defendant appealed,

*A. Moore,*for the plaintiff.

No counsel for the defendant.

Nash, J.

This is a case agreed, and we are required upon the facts, to draw such a conclusion as a jury would. The case states that the sum of four hundred and thirty-four dollars and ninety-four cents, paid to Jesse L. Pool, consisted of principal and interest, up to the time of the payment by the Clerk. It is not stated what sum the Master did collect, nor when. But it is clear the money was in the office at the Spring Term 1S39, or before, and the payment to Pool, was on the 5th of September following, and the interest was calculated up to that time. If so, it must have been upon the ground, that the defendant had used the money, for if he had kept it in the office, no interest would be due. The defendant then, had departed from his duty in two particulars, first in using the money so as to make him chargeable with interest, and secondly, in paying to Jesse L. Pool, without any authority from the Court.

We concur with his Honor, that the defendant is justly chargeable with interest on the sum paid to Jesse L. Pool.

Per Curiam. Judgment affirmed.