In Error. — This was an action of indebitatus assumpsit brought by the plaintiff against the defendant in the County Court of Sumner, wherein the plaintiff counted for moneys had and received by the defendant to his use. The defendant pleaded the general issue and set-off. Upon the trial of the issue, the following case appeared; That one D. C., an infant, in the State of North Carolina, in the county of Bertee, was bound an apprentice to one William Edwards to learn the trade of a blacksmith, by bond pursuant to the Act of Assembly. 1762. which bond was given to Pugh, the then chairman of said court of Bertee, and his successors in office; that the present plaintiff is his successor. That Edwards removed into this State. Sumner country, and that D. C., as the party injured by Redmond D. Barry, his attorney, brought suit upon said bond, to recover damages sustained by him in consequence of the breach of the covenant contained in the condition thereof by the said William Edwards, and judgment was recovered against him for $350, by way of damages, for the injury sustained by said Cooper, for which an execution issued; and upon the execution it appeared by the receipt of the plaintiff's attorney, the present defendant, *Page 103 that he received the money; upon this case the defendant submitted it to the judge to charge the jury that if they found the fact of payment of the amount of said sum in said execution, or any part thereof made by him to the said David Cooper, or his agent or assignee, or that the defendant, Barry, was entitled to a set-off, to the amount of the said sum in the said execution specified, or against said Cooper, or his assignee, or to retain by way of set-off any less sum that the same would be competent in law to discharge the defendant according to the sum as they might so find. But the court charged and instructed the jury otherwise, that the said Jourdan had a right to receive the said money from the defendant, and could maintain an action for the recovery thereof. Upon which the jury found a verdict for the plaintiff in the sum of $30. To the charge of the judge the defendant excepted, and his misconception of the law is one of the errors assigned. The other is, that the County Court had not jurisdiction, the sum given by the jury being under $50. In determining the question on the first error assigned, it is only necessary to advert to the Act of 1762, and discover the intention of the Legislature and the object it had in view. The Legislature had the benefit of orphans of a certain description in view, and they wished to substitute in the place of the natural guardian of which they had been deprived, another that would as far as possibly in their power, answer the purposes of the substitution. The County Court was appointed by the Legislature, and they directed in certain cases, as when such orphan's estate is of so small value that no person will educate and maintain him for the profits thereof, he shall be bound apprentice, c., and the manner of doing it by which the contract should be evidence, was by bond given to the chairman of the Court and his successors, by the person to whom the orphan was bound. This bond was intended to secure, for the benefit of the orphan, the faithful performance of the contract on the part of the obligor; and that the duties *Page 104 therein undertaken by the master should be well and truly discharged by him. In case, however, this should not be complied with, the Legislature directs that the bond may be put in suit by any person injured, who, at his costs and charges, may prosecute a suit thereon, in the name of the chairman and his successor, and recover all damages that he may sustain by the breach of the covenant therein contained. Who is the party here within the purview of the act as injured? The apprentice, surely; and the action is given to him and at his costs may be prosecuted, and the recovery is for damages sustained by him, of course, for his use and not for the use of the chairman of the Court, or for the use of the county. The action and recovery is in the name of the chairman as trustee; this is the form, Out the substantial interest, and the legal interest also, as I conceive, is in the orphan. This form is directed by the act, and it must be pursued, until a recovery is had. It is then no longer directed, nor is it necessary; for, after the recovery and the execution satisfied, the object in view by the Act of Assembly is attained. And the sum recovered being for the use of the party injured, which I conceive to be the orphan or his personal representative, under this act, the moment it is received vests the legal right thereto in such orphan; and in case the money is received by the attorney of the orphan in fact or in law, it is received for the use of the orphan, and the legal interest therein is in the orphan. After the satisfaction of the execution in the present case upon the former suit by Edwards, he was discharged; and after the same act for at all events the receipt of the money thereon by the attorney) the agency of the chairman in the business was at an end. He was functus officio with regard to the Transaction under the Act of Assembly, and in regard to any future question that might, in consequence of the receipt of the money, be brought forward. From this view of the case it was certainly *Page 105 competent for the defence of Barry in an action for money had and received by him to the use of the chairman, to prove as against him, Jourdan, the receipt of it, by the former suit after execution, as attorney of Cooper. For by the act the recovery in that suit was not for the use of Jourdan, but for the use of Cooper. Upon the second error assigned, I can not perceive that the question of jurisdiction can come before the Court in the present case, for before the amount of a recovery can be examined in this point of view, it must be admitted that something in this form of action in the present case was due, and could be recovered; and from the opinion upon the error examined, this action cannot be supported, of course nothing can be recovered. The opinion, therefore, is, that the Circuit Court misconceived the law in their charge to the jury upon the trial of this case.

The is an action of assumpsit prosecuted in the name of Jourdan for the use of David Cooper, in the Circuit Court of Sumner, against the then defendant Barry, for money had and received. The pleas are non-assumpsit, and set-off. Several trials were had, and verdicts for the plaintiff. The first for $449 in the County Court; the second for $496 in the Circuit Court; the third for $282, and at the last trial the plaintiff had a verdict for $30.20. On this trial a bill of exceptions was tendered, which states in substance, that, on the trial, the plaintiff's counsel gave in evidence the record of a judgment recovered for $350 and cost, in the name of the present plaintiff Jourdan, as chairman of the County Court of Bertee, for the benefit of David Cooper against William Edwards, which suit was founded on an indenture of apprenticeship made between F. Pugh, the former chairman of Bertee and Edwards, binding *Page 106 David Cooper to said Edwards as apprentice. The present plaintiff in error, Barry, prosecuted that suit to judgment, execution was issued, and the moneys paid over to Barry the attorney, for the plaintiff in that cause. On the part of the defendant, it was proved that David Cooper, for a valuable consideration, transferred his right of action contained in the indentures to John Cooper, who employed Redmond D. Barry, as attorney at law, to bring suit in the name of said Jourdan as chairman of said Bertee County Court, and that said Barry recovered judgment and received the money as attorney for John Cooper.

The counsel for the defendant below, prayed the Court to instruct the jury that the moneys levied on the execution were the moneys of David Cooper or his assignee, and not the moneys of said Joseph Jourdan; and that the reception thereof by the defendant was not a reception of the moneys of Joseph Jourdan, so that the present action, could be maintained in the name of said Jourdan. But The Court instructed them otherwise, and stated to them that the said Jourdan had a right to receive said money from said defendant, and could maintain an action for the recovery thereof.

The errors assigned are, first, that the County Court of Sumner in which the suit was commenced had not jurisdiction of the sum for which the judgment was rendered. Secondly, that the judge erred in his charge to the jury. On the first error it is sufficient to observe that the jurisdiction of the Court is not made solely to depend on the amount of the verdict. The nature of the demand is also to be taken into consideration. In this case the amount demanded is $350, and from the testimony reported in the bill of exceptions, it appears that sum was received. The pleas are non-assumpsit and set-off. The record does not show how the sum was reduced by proof to $30.20, so that we can not say it was by direct payment on that account, it might have been by a *Page 107 set-off under the plea. No error appears in the record on this point.

It is alleged that the Court erred in the charge to the jury. The first judgment was recovered in the name of Jourdan, chairman of the Court, for the use of David Cooper, the party injured. The money was received by Barry, the attorney for the plaintiff in that action. This suit is prosecuted in the same name as the former, that is, in the name of Jourdan for the use of David Cooper; and the only question arising on this record, is whether it be error to prosecute this suit in the same form as the first, or whether it ought to have been brought in the name of the party beneficially interested.

The Act of 1762, c. 5, section 20, directs the manner in which indentures for binding apprentices are to be taken, and the manner in which suit is to be brought thereon. A counterpart is to remain in the clerk's office for the benefit of the apprentice, and any person injured may, at his proper cost and charges, prosecute a suit thereon in the name of the chairman or his successors, and recover all damages by reason of a breach of the covenant, c. If judgment pass for the master, he shall recover costs. From the phraseology of this section of the act, the chairman can only be considered a nominal party; he does not prosecute the suit; he is not entitled to any part of the sum recovered, nor would he be liable to pay costs in case a verdict should pass for the master. The law does not direct this bond to be assigned to the party injured, as in case of administration and some other bonds. When judgment is had in the name of the chairman, execution must necessarily issue in the same form; and, if it should be necessary, proceedings against bail must be in the same manner; and, in short, all proceedings necessary to a recovery of the money must be in the same name. But where the money recovered is paid over to the attorney of the person who prosecutes the *Page 108 suit it is a payment, and puts an and to the suit; the effect of it is attained. If the attorney fails to pay over the money thus received to his client, he is liable in an action for money had and received. But the chairman of the Court can have no agency in this suit, either nominally or otherwise. It ought to be brought in the name of him who would be authorized to receive the money. Suppose Cooper had given any other person a power to receive the money from the sheriff or clerk; and, he, after the receipt thereof, had failed to pay it over; could a suit be maintained in the name of Jourdan to recover the money? It could not; and I do (not?) conceive that the receipt of the money would be considered as received to the use of Cooper and not of Jourdan.

Under these impressions, I believe the charge of the judge was incorrect in stating that Jourdan had a right to receive the money from the defendant. And that the judgment on this ground ought to be reversed, and the cause remanded for a new trial. Bat, as no error appears except what occurred at the trial, and it appears by the record that two new trials had been granted to the defendant in this cause, the Circuit Court, if it had been moved for another, perhaps could not have granted a third consistently with the Act of 1801, c. 6, sec. 59.

The power of this court to direct a fourth trial, under those circumstances, has not been decided on so far as I recollect. On this point, therefore, we will advise till next term.