Armstrong v. Dalton

• Decision Date: 30 June 1834
• Citation: 15 N.C. 568
• Court: North Carolina Supreme Court
• Parties: THOMAS J. ARMSTRONG, Chairman, etc., v. DANIEL DALTON Exr. of ISAAC DALTON.

15 N.C. 568

THOMAS J. ARMSTRONG, Chairman, etc.,

v.DANIEL DALTON Exr. of ISAAC DALTON.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1834.

Although no laches are imputed in the State, and as to it the rule is nullum tempus occurrit, etc., yet this is not the case as to those bodies to whom the execution of public trusts is confided. And where the County Court brought an action of assumpsit against a treasurer of public buildings, it was held that the act of limitations was a bar.

This was an action of ASSUMPSIT, commenced 2 April, 1833, by the plaintiff, as chairman of Stokes County Court, (he being enabled to bring it by a private act of the Assembly passed in 1825), against the defendant, the executor of David Dalton, for money paid to the testator, as Treasurer of Public Buildings, and not accounted for.

PLEAS—1. Non Assumpsit. 2. Statute of Limitations.

On the trial on the last circuit, the plaintiff offered the deposition of one Archibald Campbell, taken under a commission signed by the clerk of the Superior Court of Stokes, under the seal of that Court, but which recited that the Court in which the action was pending, was "the Superior Court of Law and Equity for the County of Stokes." The defendant objected to the deposition, and assigned as a reason why it should be excluded, that the action was pending in the Superior Court of Law for the County of Stokes; there being in fact, no such Court as that described in the commission. But his Honor Judge Norwood overruled the objection, and the deposition was read. The defendant offered evidence which tended to prove that more than three years had elapsed since his tstator made a payment on account of the fund in his hands, and he relied upon the Statute of Limitations.

His Honor charged the jury that the Statute of Limitations did not bar the State, and inasmuch as the Legislature had delegated to the County Courts for the more convenient administration of justice, a portion of the sovereignpower, it did not bar their action, the money claimed being the property of the public.

A verdict was returned for the plaintiff, and the defendant appealed.

DANIEL, J., after statins: the case proceeded: In England, a general rule has been laid down, as established, that when an

act of Parliament is made for the public good, the advance-merit of justice, and to prevent injury and wrong, the King shall be bound by such act, though not particularly named therein. But where a statute is general, and thereby any prerogative, right, title, or interest, is divested or taken from the King, in such case the King shall not be bound unless the statute is made by express words to extend to him. Bac. Ab. (Prerogative, E 5, page 559). From the presumption that the King is daily employed in the weighty and public affairs of government, it has been an established rale of common law, that no laches shall be imputed to him, nor is he in any way to suffer in his interests, which are certain and permanent. "Vigilantibus seal non dormientibus jura subveniunt" is a rule for the subject, but nullum tempus occurrit regi, is the King's plea. For there is no reason that he should suffer by the negligence of his officers, or by their contracts or combinations with the adverse party. (5 Bac. Ab., 562, Hob. 347.) Therefore the King is not bound by any statute of Limitations, unless it is made by express words to extend to him. (5 Bac. Ab. 461, Plo. 244.) But the rule of nullum tempus occurrit regi, is subject to various exceptions, both at common law and by statute, which may be seen in Mr. Hargrave's note, to 1 Thomas' Coke Lit. 74 (n. 16). It seems that the rule nullum tempus, etc., is applicable to the States where not restrained by some constitutional provision, legislative enactment, or principle of the common law....