#### THE STATE TO THE USE OF W. R. LEE & AL *vs.*WILLIAM H. WATSON & AL.

A. Was appointed a guardian to certain infants at February Term, 1833, of the County Court, and so continued until May Term, 1841. During this time he never renewed his bonds as required by law. The first renewal should have been at February 3 836 and the second at February 1839. In August 1837, W. W. was appointed Clerk and issued no notice to the Guardian to renew his bonds; *Held,*that the Clerk and his sureties were responsible for this neglect and were bound to make compensation to the orphans for any loss they sustained thereby.

Eoíhs, C. J. *dissentiente.*

Appeal from the Superior Court of Law of Johnston County, at the Fall Term, 1845, bis Honor Judge Settle presiding.

This is an action of debt, upon the official bond of the defendant, Watson, brought against him and his sureties.

The case is as follows: At the February term, 1833, of Johnston County Court, Nathan T. Allen was appointed guardian of the relators, and so continued until February term, 1841, of said Court, when he was removed, and William R. Lee was appointed. The guardian bond of Allen never was renewed, nor did any notice ever issue to compel him to do so. At the time of his appointment, Ransom Sanders was the Clerk of the Court, and held his office until the August term, 1837, when the present defendant, Watson, was appointed and gave bond according to law, which was renewed at the August term, 1838, with the other defendants, his sureties. At February term, *1839,*Allen and his sureties were solvent; they have, since, become entirely insolvent. The relators, by their present guardian, brought suit against Allen and his sureties, and recovered judgment for the sum of $1,500, as the amount of what was due to them from Allen, as their guardian. The execution, issued upon this judgment, has been returned by the sheriff, nulla, *290*bona.*The action is brought on the bond executed by the defendants, at August term, 1838, and the breach assigned is, the failure of Watson, the defendant, to issue to Allen a notice, from February term, 1839, to the May term succeeding. *It is*admitted, *that*the defendant did not in fact know, that Allen had not renewed his bonds, nor did the records of the Court show it in any other way than by their entire silence on the subject. There was a ver» diet fo.r the defendants and an appeal by the plaintiffs.

*J. II. Bryan, Busbee,*and Iredell, for the plaintiffs.

*W. II Haywood,*and *II. W. Miller,.fon*the defendants.

Nash, *J.*

Upon the trial below, his Honor, the presiding Judge, gave judgment, *proforma,*against the plaintiffs. In this opinion, I do not concur, but believe that the plaintiffs were entitled to a judgment, to the full amount of the injury sustained by them, in consequence of the failure of the Clerk, the defendant, Watson, to ' issue a notice to Allen, as assigned in the declaration.

The bond, on which the action is brought, is in the form usual to such instruments, and concludes with the following covenant, “and in all things do and execute the several duties of said office, as required by lav/.” Did the *law*make it the duty of Watson, as Clerk of the Court, to issue the notice to Allen, as set forth in the case, and have the plaintiffs been injured by his failure so to do ? To *my*mind it is perfectly clear, that it was his duty, *ex officio,*to issue the notice, and that, not to do it, was a breach of his bond. The Legislature of our State has exhibited a praiseworthy anxiety to guard the interest of orphans. From the year 1762, to the year 1825, they have enacted many laws with that view. To save the expensive, and often tedious, applications to a Court of Equity, by the Act of 1762, ch. 69, they gave to the Superior and County Courts the care of orphans, and their estates, in their respective counties, making it their *291duty to appoint guardians, and take from them bond with good and sufficient sureties. And to ensure a vigilant and faithful discharge of this duty, the Magistrates, who are on the bench, when the appointment is made and the bond taken, are, themselves, constituted sureties of the guardian, if they fail to take such sureties as are good at the time. And, in order that the orphan may be at no loss to know to whom to look for indemnity in such a case, by the Act of 1825, ch. 18, sec. *2,*it is made the duty of the Clerk of the Court, “to make a record of, and enter at large upon their docket, and, endorse upon-the guardian bond, the names of the Justices, present in Court, and granting the guardianship,” &c. By the 15th section of the Act of 1762, the County Court is required to hold an orphan’s Court annually, to which all guardians are required to return their accounts and have them settled; and the Act of 1816 makes it the duty of the Clerk, *ex officio,*to issue notices to all guardians to make such returns. By the 4th. 9th and 16th sections of the Act of 1762, it is made the duty of the several Courts to remove any guardian, by them appointed, who is abusing his trust, “ or where such guardian or his sureties are likely to become insolvent,” and “to make such order for securing the estate of the ward, as they shall think fit and proper.” In the year 1820, ch. 5, for greater security of the estates of orphans, the Legislature provides, that all guardians shall renew their bonds every three years from the date of their respective appointments. And by the 2nd section, it is made the duty of the Clerk of each Court, to issue a notice, in the nature of a *scieri facias,*against each guardian, failing so to do. By this Act, two evils were inflicted upon those, whose interest it was intended to subserve ; the one was, that no *sci. fa.*issued without an order of the Court, and the second was, that much expense was incurred. To remedy them, another Act was passed in 1824, ch. 16, which provides, that, instead of the *scieri facias,*required by the Act of 1'820, “the *292Clerks be required, to issue an *ex officio*summons. This is a succinct history, in part of the legislation of this State, upon this important and interesting subject. The object of the Legislature cannot be mistaken; it is to protect those, so helpless in themselves, and so needing protection ; and if these laws are duly enforced, it can scarcely be, but that the estates of orphans will be secured. The question in this case arises under the Act of 1824. The phraseology is certainly awkward — the Clerk is required to issue an *ex officio*summons; the meaning is too obvious to excite any doubt; it is, that the Clerk shall, *ex officio,*issue a summons. By the Act of 1820, it is made the duty of the Clerk to issue a *sci. fa.*and the practice under it was, that no *sci. fa.*issued without an order of Court. The consequence was, that it very rarely issued at all, for the want of some person to move in the matter. To remove this difficulty, it was made the official duty of the Clerk to issue the notice. If it be his official duty, then, unquestionably, the omission on his part to issue the notice, is a breach of his bond. But it has been ■urged here, that the records of the County Court of Johnston, when the defendant Watson, was appointed. Clerk, did not show that Allen had not renewed his bonds, and that he, Watson, was ignorant of the fact, and that no ■request was, at any time, made to him, to issue a notice, nor did the Court make any order to that effect. This may be all true, and doubtless is so, but it does not, in my estimation, form any justification for Watson, or, in other words, prevent a breach of his bond. There was no necessity for a request, or order of Court, for it was his duty, as Clerk and by virtue of his office, to issue it. If he was ignorant of the fact, as alleged, it was a culpable ignorance, which cannot, and ought not, in my opinion, to protect him. Allen’s bond was renewable at February term 1836, and at February term 1839. Watson was appointed Clerk at August term 1837, and then took possession of the records. They told him when Allen was *293appointed, and of course when his bond was, renewable, and did not shew that it ever had been renewed.

It is asked, how far back was it the duty of the Clerk to examine the records, to find out who were defaulting guardians. ■ The question is not without its difficulties, and I would not undertake to lay down any rule upon the subject, if any can be. In my opinion, it is not necessary to say more upon this point, than that, here, the time is too short. But eighteen months elapsed from the period when Allen ought first to have renewed his bond, to-wit, February term, 1836, and the time when Watson was appointed Clerk, to-wit, *August*term, *1839.*And in 1839, when it ought, I presume, again to have been renewed, Watson was the Clerk of the Court.

It is no answer to the claim of the plaintiffs, that Allen’s first failure was while Sanders was the Clerk of the Court, and that his failure to issue the notice gave-them a right of action against him and his sureties. This is certainly so, but it does not .relieve the defendants-from their liability for a- breach of their bond, by a like failure on the part of Watson.

It is asked what damages are the plaintiffs entitled to,, and by what rule are they to be ascertained ? My answer is,, the plaintiffs are entitled to damages to the amount of the injury sustained by them-, from the failure-in the performance of official duty by the defendant, Watson, and that in this case, a rule has been resorted1 to, which is satisfactory to my mind, to-wit, the ability of the guardian, Allen, to pay to the plaintiffs what he owed them at the time the notice ought to have been issued by Watson, and, his, now, entire inability. In-August 1837, when Watson was appointed Clerk, Allen and his sureties, were solvent, and so continued up to-February term, 1839 ; that is, Allen had property suffi-' cient to pay all his debts, and, of course, what he owed; the plaintiffs. Had the defendant, Watson, issued the-notice to. Allen, from February term to May term, 1839, *294during which period Allen and his sureties were solvent, the Court might, and doubtless would, have taken the necessary steps to secure the estate of his wards, either by compelling him to renew his bonds, and give new and sufficient sureties, or by taking such other steps as they might have deemed necessary.

Believing, then, that it was the duty of the defendant, "Watson, *ex officio,*to have issued the notice to the guardian, Allen, I am constrained to say, in the language of his official bond, that he has not *“*done and executed the several duties of his office as required by law,” and that the plaintiffs have a right to be compensated in damages, to the full amount of the injury they have sustained by his delinquency.

In my opinion, the judgment of non-suit was erroneous, and there ought to be a *venire de novo.*

Daniel, J.

Watson was the Clerk of the County Court of Johnston, and he and his sureties are sued on his official bond, given, on the 2Sth day of August, in the year 1S3S. The condition in the bond alleged to be broken, is as follows : *“*And that he (the said William W. Watson) would in ail things do and execute, the several duties of said office (of Clerk) as required by law.” The breach, assigned upon this condition in the bond, was, that Watson had not *ex officio,*issued a notice, agreeably to an Act of Assembly to one Allen, the then guardian of the relators, for him the said Allen, to come into Court and renew his guardian bonds ; he, the said Allen, having been appointed by the County Court of Johnston, guardian to the relators in the year 1833, and still continuing their guardian. He had not renewed his guardian bond, as the law directs, for three years next before the 20th day of February 1839 ; whereby the plaintiffs complain, that they have been damaged, &c. The Judge non-suited the plaintiffs, and they appealed.

*295We think that the non-suit was improper. The Clerk was bound by law to take notice, that the guardian Allen had not renewed his guardian bond in the time prescribed by law. And it was, then, one of the duties of his office *(ex*officio) to have issued a *scieri facias*to him, Allen, to come into Court and renew his bond, according to the requirements of the Act of Assembly. He did not issue the notice, and it seems to us, that the aforesaid condition in his official bond was broken; and that the plaintiffs were entitled to recover nominal damages at least. But before the damages could be further increased by the jury, it would have behooved the plaintiffs to shew to their satisfaction, that, if the notice had been issued, returnable to November term 1S38, or to February term 1839, the guardian was then able, and would have given the additional sureties required by law; or that the Court would then have removed him, on his failure to give such additional surety, and would have appointed another guardian, who would have recovered the whole demand of Allen and his sureties, before their failure ; or would have recovered something, out of the wreck of the estates of Allen and his sureties. The verdict of the jury must, of course, be regulated by such proofs, as the plaintiffs can make upon the questions aforementioned. And if the jury should be of opinion, that Allen would not, or could not, have given additional surety for his guardianship, or that nothing could have been realized by a new guardian, out of the estates of him and his sureties, if notice had been duly given him by the Clerk, returnable either to November term 1838, or February term 1839, then nominal damages only should be their verdict. The whole debt, due the plaintiffs from Allen, or a part of the same, or a nominal sum, must be the measure of the damages to be assessed by the jury, according as the' proofs of the plaintiffs’ loss may appear to have arisen from the negligence of the Clerk, or not.

*296We think, that there must be a new trial.

Per Curiam. Judgment reversed and *venire de now*awarded.