Alexander v. Commissioners of McDowell

• Decision Date: 30 June 1872
• Citation: 67 N.C. 330
• Court: North Carolina Supreme Court
• Parties: S. B. ALEXANDER v. COMMISSIONERS OF MCDOWELL.

67 N.C. 330

S. B. ALEXANDER

v.COMMISSIONERS OF MCDOWELL.

Supreme Court of North Carolina.

June Term, 1872.

If a note be made payable at a particular time and place, a demand at the time and place need not be averred and proved in an action by the holder against the maker. It is otherwise, if it is payable on demand at a particular time and place.

In an action, however, against the Board of Commissioners of a County a demand is necessary, without regard to the fact whether the claim is expressed to be payable at any particular time or place, and in a mandamus, “the writ should show expressly, by the averment of a demand and refusal, or an equivalent, that the prosecutor, before his application to the Court, did all in his power to obtaln redress.”

It would seem that in an action against the Commissioners of a County, the action should be brought in the County in which they are officers, C. C. P., sec. 67.

[ Nicnols v. Pool, 2 Jones 23; Love v. Commissiouers of Chatham, 64 N. C. 706, cited and approved.]

This was a petition for a writ of mandamus against the County Commissioners of McDowell County, filed on the 18th day of October, 1870, and heard before Henry, J., at a Special Term, of MECKLENBURG Superior Court.

The following facts were agreed upon:

That the suit was brought to compel the Commissioners of McDowell County to levy a tax, for the payment of interest due upon bonds issued by the County Court, under authority of an act of the General Assembly, entitled an act, amendatory of an act, incorporating the Western North Carolina Railroad Company.

2d. That said bonds were signed, but not delivered to the railroad company until after the war, and when the county courts had ceased.

3d. That a tax had not been levied to pay the interest.

4th. That no demand for payment of interest had been made before bringing this suit.

5th. That the coupons or interest is made payable at Marion, McDowell, County.

Defendants' counsel insisted that the act of Assembly under which the bonds were issued was unconstitutional.

That the bonds having been issued after the authority of the County Courts ceased were invalid.

That the Commissioners had no authority to levy a tax.

That a demand was necessary.

His Honor gave judgment for the plaintiff and directed a peremptory mandamus to issue.

Jones & Johnston, for plaintiff .

J. H. Wilson, for defendants .

READE, J.

1. As to whether a demand was necessary before action?

In Nichols v. Pool, 2 Jones 23, which is the leading case in our Court upon the subject, it is decided, that if a note be payable at a particular time and place, a demand at the time and place need not be averred or poved in an action by the holder against the maker. It is otherwise if the note be payable on demand at a particular time and place.

In our case, it is stated that the notes and coupons were payable at Marion; but it is not stated that they were payable on demand at Marion. It would seem, therefore, that if this were an ordinary action between individuals, no demand would be necessary against the maker. This brings us to the question whether we should hold the same in regard to actions against the Board of County Commissioners. In Love v. Comms. of Chatham, 64 N. C. R. 706, it is decided that a demand is necessary, before action brought, without regard to the fact whether the claim is expressed to be payable at any particular time or place. There is a manifest reason why the rule should be different between an individual and the Board of Commissioners. An individual acts for himself, is supposed to know all his liabilities,...