Jones v. The Bd. of Comm'rs of Bladen County
| Decision Date | 30 June 1875 |
| Citation | 73 N.C. 182 |
| Court | North Carolina Supreme Court |
| Parties | THOMAS J, JONES v. THE BOARD OF COMMISSIONERS OF BLADEN COUNTY. |
*1 The demand necessary to support an action against the Commissioners of a county for the recovery of a debt, must show that it was made upon the person authorized by law to pay, or if authorized to pay, that the plaintiff had placed himself in a situation to make the demand, by having had his claim previously audited.
The complaint in such action should aver that the plaintiff having had a claim audited and allowed by the Board of County Commissioners, presented it to the County Treasurer for payment, and that he declined to accept the same and make payment, of which the defendants had notice: atherwise, such complaint will be subject to demurrer.
(The case of Love v. Commissioners of Chatham, 64 N. C. Rep. 706, cited and approved.)
CIVIL ACTION for the recovery of money loaned, tried upon complaint and demurrer, before his Honor Judge Kerr, at Spring Term, 1875, of the Superior Court of BLADEN county.
In this complaint, among other things, the plaintiff charged that in 1864 he loaned to the county of Bladen $16,000, for which he received a bond signed by the Chairman of the Court of Pleas and Quarter Sessions, and countersigned by the Clerk of said Court, and under the seal thereof. That the Justices of said Court did not pay, nor have the defendants, as their successors since paid the said sum of $16,000, and interest upon the same, nor any part thereof, though the same has been demanded by the plaintiff before the bringing of this action, &c.; prays judgment, and for a writ of mandamus.
The defendants demurred, alleging for cause:
That the complaint does not show that the claim was submitted to and audited by the Board of Commissioners, and an order on the County Treasurer given therefor; nor,
Does the complaint show that the plaintiff presented his claim to the proper officer for payment; nor that he demanded payment; nor that said officer refused to accept the same, and that the defendants had notice of its non-acceptance.
Upon the hearing, his Honor overruled the demurrer and the defendants appealed.
T. H. Sutton, for appellants , filed the following brief:
*2 1. The bond declared upon by the plaintiff comes under the meaning and purview of the act of 1868, chap. 19, page 21, ratified the 22d of August, 1868, which declares:
“That it shall not be lawful for the County Treasurers of this State to pay out of the funds of the counties any order or other certificate of indebtedness issued by the late County Courts, unless the same shall have been audited by the Board of County Commissioners.” Bat. Rev., chap. 30, sec. 11, p. 285.
2. The exercise of such authority by the Board of Commissioners is incidentally referred to in Love v. Com. of Chatham, 64 N. C. Rep., 706, and Mauney v. Com. of Montgomery, 71 N. C. Rep., 486, going to show that all such “certificates of indebtedness” must be audited by the Commissioners, because the law so says.
3. The complaint does not aver that the defendants refused to give the plaintiff an order for his claim, as allowed by them, if it had been presented and audited; nor a demand upon the proper officer, nor that he declined to accept such order, or make payment of the same, nor that the defendants had notice of such non-acceptance or non-payment. Love v. Commissioners of Chatham, 64 N. C. Rep., 706. Nor that the prosecutor did all in his power to obtain redress. Alexander v. Commissioners of McDowell, 67 N. C. Rep., 330.
Merrimon, Fuller & Ashe, contra .
That a demand was necessary before action begun is well settled. Love v. Commissioners of Chatham, 64 N. C. Rep. 706. If, therefore, it had appeared from the complaint that no demand had been made, that would have been good cause of demurrer. If it had appeared that a demand had been made, but upon the wrong party, that also would have been cause of demurrer. The averment of demand is in the following words: “That the justices of the late Court of Pleas and Quarter Sessions did not pay, nor have the defendants, as their successors, since paid the said sum of sixteen thousand dollars and interest upon the same, nor any part thereof, though the same has been demanded by the plaintiff before the bringing...
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