Parmele & Baker v. Brashear , 16 La. 72 ( 1840 )

Martin, J.,

delivered the opinion of the court.

This case was before us at a former term, on an exception which was sustained by the District Court, and which this court overruled, and remanded the case for trial on the’ merits. See 11 Louisiana Reports, 329.

There was judgment on the second trial for the defendant, and the plaintiffs have again appealed.

The defendant’s principal in the bond, curator of the estate of William S. Barr, deceased, at the end of the first year of his curatorship, presented an account of his administration, in which he placed the plaintiffs as creditors, for the sum of three hundred and sixty dollars and fifty cents, and stated that their proportion of the funds collected, was forty dollars and ninety-four cents. This account was homologated ; payment ordered accordingly, and the curatorship prolonged for another year. At the expiration of the second year, he presented another account, in which the plaintiffs were placed as creditors for the surn of three hundred and nineteen dollars and fifty cents, and their proportion of the funds on hand put down at one hundred and eighty dollars and fifty-three cents, and payment ordered accordingly. There was a prolongation of the curatorship for the third year, (1834,) with the present defendant as surety. The bond bears date the 13th of June, 1834. On the 11th of December, in the same year, the plaintiffs claim was liquidated by a judgment for the sum of three hundred and sixty-seven dollars, with interest. The present suit is instituted for the amoun(i 0f this judgment, on the last, mentioned bond, against the surety therein.

curator’s bond against the surety, he is only moneyBf°whioh came into the hands of the curator after signing the debts which are unpaid from over the funds of a curator’s bond being, that hewiiifaithfuiiy perform'tiie duties of his office, a failure to pay over money rsha\;lheof'° the condition, and the creditor lias his remedy againithe sure-

The present defendant was surety on the original bond, anc^ another person on I lie first prolongation or second bond.

With regard to the moneys which the principal had received, before the cíate of the bond sued on, the present defendant's clearly not liable. There is no evidence that any money came into his hands after that time. The plaintiffs, . therefore, have no claim for the non-payment of money. But 'condition of the bond is, that the curator “shall well and truly administer upon the estate, and faithfully execute and perform the duties required of him by law.” The neglect lo administer faithfully and perform these duties is most certainly a breach of the condition of the bond. The solvency or the estate is stated by the curator, and appears further R°m the inventory and statement of active and passive debts filed hy him. The prolongation of the curalorship is conclusive evidence that part of the duties of the curator remained be performed. It is not shown (hat any of them have been attempted to be performed since that lime. The condition of the bond is therefore broken.

R remains to inquire into the amount of the plaintiffs’ claim. It lias been liquidated by the judgment for the full amount of the original account, in (he sum of three hundred and sixty-seven dollars. The curator had received funds of the estate out of which he had been directed to pay two hundred and twenty-one dollars and forty-seven cents, as the proportion due to the plaintiffs, before the date of the bond sued on. For this, if not paid, his remedy is on the two first bonds. The balance to wit, (he sum of one hundred and forty-five dollars and fifty-three cents, forms the amount of his claim in the present suit.

It has been contended that the plaintiffs ought first to have provoked the filing of an account and tableau of distribution by the curator. This would have been very requisite if they had sought a recovery from the estate administered by him. But the sole object of the present suit is to recover from the surety of the curator, personally and out of his private property, the damages which they have sustained by the breach of the condition of the bond. See the case of Rison vs. Young and Turnbull, 7 Martin, N. S., 294.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled and aversed ; and it is further ordered, adjudged and decreed, that the plaintiffs do recover from the defendant, Walter Brashear, the sum of one hundred and forty-five dollars and fifty-three cents, with legal interest from the first of June, 1832, until paid, with costs in both courts.