Furman v. Timberlake
| Decision Date | 31 October 1885 |
| Citation | 93 N.C. 66 |
| Court | North Carolina Supreme Court |
| Parties | W. H. FURMAN v. R. H. TIMBERLAKE. |
This was a CIVIL ACTION tried before Shepherd, Judge, at Spring Term, 1885, of FRANKLIN Superior Court.
The plaintiff in his complaint alleged that he had been clerk of Superior Court of Franklin county, from 1868 to 1874, in which latter year the defendant succeeded him in the office. That there were fees and costs to a considerable amount, to-wit: “______ dollars,” due him when he went out of office, and which were afterward received by the defendant in his official capacity.
The statute of limitations was relied on by the defendant, and it was admitted that the plaintiff demanded this money from the defendant on the 30th of September, 1878, and the action was begun in February, 1881--less than three years after the demand, but more than three years after the receipt of the money.
There was judgment for the plaintiff, from which the defendant appealed.
Mr. B. B. Massenberg, for the plaintiff .
Mr. Jos. J. Davis, for the defendant .
ASHE, J., (after stating the case).
The defendant's counsel insisted that the action was barred by the statute of limitations; that the statute began to run from the time of the receipt of the money, and not from the demand, because no demand was necessary to give the plaintiff a right of action against a clerk for money received by him in his official character, and he relied upon the following cases to support his position-- Little v. Richardson, 6 Jones, 305; Com'rs v. Magnin, 86 N. C., 285; State v. McIntosh, 9 Ired., 307; State v. Woodsides, 9 Ired., 496; Robertson v. Dunn, 87 N. C., 191; Bryant v. Peebles, 92 N. C., 176.
The first four cases cited by the defendant's counsel were actions brought by public officers to recover public money, and in each of these cases it was held that no demand was necessary. The case of State v. McIntosh, was the first case in this State where the point was decided, and it was there expressly held that no demand was necessary, before bringing an action against the sheriff for money collected by him, because as NASH said, “the money here collected is public money, and for it no demand was necessary.” A ruling which, no doubt, was predicated upon the maxim, “ nullum tempus, &c,” a maxim which is said to have been founded upon the great public policy of preserving the public rights, revenues and property from injury and loss by the negligence of public officers. But the maxim is no longer in force in this State having been abrogated by the provisions of The Code, § 159.
The other cases cited by the defendant's counsel apply exclusively to agents and trustees and have no application to a case like this, where the defendant is in office, clothed with high public trust, among others, to pay over according to law, all moneys and effects which have come or may come into his hands by virtue or color of his office, a duty for the performance of which he is required to give a bond with security in a high penal sum.
When he has received money by color of his office, the person for whose...
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City Of Raleigh v. Mech.S & Farmers Bank
...129 N.C. 90, 39 S.E. 734. Numerous references to the subject appear in the reports. There is the statement in the case of Furman v. Timberlake, 93 N.C. 66, decided in 1885, that "the maxim is no longer in force in this State having been abrogated by the provisions of The Code, § 159", now C......
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City of Raleigh v. Mechanics & Farmers Bank
...applicable to or controlling the subject provided otherwise", citing the first case of City of Wilmington v. Cronly, supra, and Furman v. Timberlake, supra. And in the case of Manning v. Atlantic & Y.R. Co., 188 N.C. 648, 125 S.E. 555, 565, referring to the provisions of C.S. § 420, it is s......
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Manning v. Atlantic & Y. Ry. Co.
...abrogated and is not in force in this state, unless the statute applicable to or controlling the subject otherwise provides. Furman v. Timberlake, 93 N.C. 66; Threadgill v. Wadesboro, 170 N.C. 641, 87 S.E. True, in the two cases of Wilmington v. Cronly, 122 N.C. 383, 388, 30 S.E. 9, there i......
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Manning v. Atl. & Y. Ry. Co
...abrogated and is not in force in this state, unless the statute applicable to or controlling the subject otherwise provides. Furman v. Timberlake, 93 N. C. 66; Threadgill v. Wadesboro, 170 N. C. 641, 87 S. E. 521. True, in the two cases of Wilmington v. Cronly, 122 N. C. 383, 388, 30 S. E. ......