Wilson v. Coffield

• Decision Date: 30 June 1845
• Citation: 5 Ired. 513,27 N.C. 513
• Court: North Carolina Supreme Court
• Parties: LOUIS D. WILSON v. A. H. COFFIELD et al.

5 Ired. 513

27 N.C. 513

LOUIS D. WILSON

v.A. H. COFFIELD et al.

Supreme Court of North Carolina.

June Term, 1845.

In an action by warrant against a constable's sureties under the Act, Rev. St. ch. 81, sec. 3, to recover moneys collected by a constable by virtue of his office, proof, that the constable had received goods or labor in satisfaction of the claim he had to collect, is sufficient to entitle the plaintiff to recover.--It is not requisite that he should have received the actual money.

An action under that Statute can only be barred by the same length of time, that bars an action on the bond.

Appeal from the Superior Court of Law of Martin County, at the Spring Term, 1845, his Honor Judge DICK presiding.

This action commenced by a warrant, and the plaintiff declares therein, that the defendent owed him the money therein claimed. The case is: one Feilding P. Turner was in the year 1838 duly appointed a constable in Martin County, and, on the 9th of January of that year, executed his official bond with the defendants, as his sureties. On the 22d of February 1838, the plaintiff put into the hands of Turner, as such constable, two several judgments, for collection, both against John Wilson, one for the sum of $23 78 3/4 and the other for $20 47. During the year 1838, John Wilson sold to Turner furniture, the value of which, it was agreed, should be credited, on the said claims, and during the said period performed for him work and labor, which, together with ninety cents in cash, amounted in all to a sum, more than sufficient to discharge the judgment for $23 78 3/4, and accordingly, in the latter part of 1838, they, the said Wilson and Turner, came to a settlement, and the claim for $23 78 was surrendered up to the said John Wilson, as being discharged; leaving a small ballance in Turner's hands, which he promised to apply as a credit to the other judgment. In 1842 John Wilson paid the amount of the other judgment, to one Gardiner, who had possession of it, but how he came by it, was not proved. The warrant issued in March 1844 and the demand for the money was made a month or two before Turner left the State in 1839.

On behalf of the defendants, it is contended, that the claim for the smaller judgment could not be sustained, because there was no proof of any money being received for it by Turner, during the year 1838, for which year alone the defendants were his sureties, and the Judge so decided. It was further contended that the plaintiff could not recover the other claim, because the act of assembly gives this peculiar remedy, only in cases where the constable has received money, and not where he has received labor or property, and, secondly, because more than three years elapsed before the beginning of the suit after the right of action had accrued. The court charged the jury, that the statute of limitations was no bar, and that the plaintiff was entitled to recover the amount of the judgment, for $23 78.

Heath for the plaintiff .

The defendants object, 1st. That a summary remedy before a magistrate will only lie, where actual...