Opinion
June Term, 1859.
No demand is necessary to be made of a clerk for money which he has received officially, and is bound to pay over.
The act of limitations as to official bonds, Rev. Stat. ch. 65, sec. 8, bars the action for fines and forfeitures after six years, from the end of three months when he is bound to pay over, and not from the time when demand was made.
THIS was an action of DEBT, tried before HEATH, J., at the last Spring Term of Anson Superior Court.
Ashe, for the plaintiff.
R. H. Battle, for the defendants.
The plaintiff declared on the following official bond, made by A. B. Smith, the defendant's intestate, upon his qualification as clerk of Anson Superior Court.
"Know all men by these presents, that we, Alexander B. Smith, c., are held and firmly bound unto the State of North Carolina, in the sum of four thousand dollars, to which payment, well and truly to be made, and done, we bind ourselves, our heirs and assigns, jointly and severally, firmly, by these presents. Sealed with our seals, and dated this 25th day of September, Anno Domini, 1847.
"The condition of the above obligation is such, that whereas, the above bound Alexander B. Smith, hath been elected clerk of the superior court of law of Anson county: Now, therefore, if he shall well and truly and faithfully pay over and account to the county trustee of Anson county, and due return make, according to law, of all tax-fees, forfeitures and amercements, which may come into his hands by virtue of his office as clerk aforesaid, at the times prescribed by law, then this obligation shall be void and no effect, otherwise remain in full force." Signed, c., by the clerk and his several sureties, the other defendants in this case.
After oyer had, the pleas of the defendants were entered, viz. — conditions performed and not broken-statute of limitations barring suits on official bonds after six years from the time the cause of action accrued.
The evidence showed, that on the 10th of September, 1850, after the resignation of A.B. Smith, Nathan Beverly was duly appointed his successor upon giving bond and surety. The writ was issued on the 2nd of September, 1857. The default occurred more than six years prior to suit brought, but no demand was made until two or three days before the suit was brought.
The plaintiff insisted:
1. That the statute of limitations barring suits on official bonds, did not apply in this case.
2. That if it did, it commenced running only on demand. The Court charged the jury against the plaintiff on both these points. Plaintiff excepted.
The jury found that the conditions of the bond had been broken and assessed damages to _____, but that the said breaches had occurred more than six years prior to the bringing of this suit. Judgment and appeal by plaintiff.
The bond, for the breach of which this action was brought, was given in the year 1847, and the clerk, who was the principal therein, resigned and went out of office in September, 1850. The case must depend, therefore, upon the provisions of the Revised Statutes, which were not superseded by the Revised Code until the first day of January, 1856.
By the 8th section of the 65th chapter of the Revised Statutes, it is enacted that "all suits on the bonds of sheriffs, constables, clerks of the superior courts of law, clerks and masters in equity, and clerks of the courts of pleas and quarter sessions, shall be commenced and prosecuted within six years after the right of action shall have accrued and not afterwards, saving, nevertheless, the rights of infants, femes covert, and persons non compos mentis, so that they sue within three years after their disabilities are removed." The suit in the present case was not commenced until the year 1857, more than six years after the right had accrued, unless, as the plaintiff's counsel contends, such right of action did not accrue until a demand was made, which was only a few days before the writ was issued. The question, then, is, was a demand necessary before the plaintiff, as county trustee, had a right to commence his suit upon the bond of the defendant, Richardson's intestate, for his default in not paying over the money in his hands, to which the plaintiff was entitled. This, we think, is answered by the case of the State to the use of Moore County v. McIntosh, 9 Ire. Rep. 307. It was there held that no demand was necessary to be made of a sheriff, for public money, which it was his duty to pay over. The principle applies equally to a clerk, who has officially received money for which he is accountable. But the plaintiff's counsel objects, that no particular time is fixed, at which he is to pay over fines, forfeitures and amercements, and that, therefore, he was in no default until he had refused, or neglected to pay upon a demand. The answer to this objection is that, though the condition of the clerk's bond, in the present case, stipulates for the paying over, and accounting for, to the county trustee, fines, forfeitures and amercements as well as tax-fees, yet it seems from the 8th section of the 28th chapter of the Revised Statutes, that it was the duty of the sheriff, and not of the clerk, to collect and account for the former, while to the clerk is assigned, by the 6th section of the same chapter, the duty of receiving and paying over within three months after the receipt thereof, the tax-fees on suits. There was a time fixed then, for a payment by the clerk of the only public moneys which he was to receive and pay the county trustee, and of course, he made a default at the moment when he failed to perform his duty in that particular. This default gave to the county trustee a right of action upon the clerk's bond, which is barred by not having been commenced and prosecuted within six years.
PER CURIAM, Judgment affirmed.