State ex rel. Rockwell v. Hankins, 28 N.C. 428, 6 Ired. 428 (1846)

June 1846 · Supreme Court of North Carolina

28 N.C. 428, 6 Ired. 428

THE STATE, TO THE USE OF CHESTER ROCKWELL vs. WILLIAM HANKINS & AL.

If, in reply to the plea of the statute of limitations, the plaintiff wishes to avail himself of the pendency of a former suit, he must set forth the suit specially in his replication.

By the practice in this State, if no replication is actually entered, a general one is understood.

When the statute of limitations is pleaded to an action on the bond of a sheriff, clerk, &e. the plaintiff cannot reply that a former suit for the same cause of action had been brought within the proper period, in which there had been a non-suit, discontinuance, &e. In suits of this kind, there is no such saving against the operation of the statute.

The cases of Kirk v. Coble, 2 Dev. 489, Slade v. The Covernor, 3 Dev. 3G5, Worth v. Fentress, 1 Dev. 419, Brown v. Franklin, 3 Murp. 213, and Clark v. Rutherford, 3 Murp. 237, cited and approved.

Appeal from the Superior Court of Law of Brunswick County, at the Spring Term, 1840, Ilis Honor Judge Dicic presiding.

This was an action of debt brought on the oilicial boud of the defendant Hankins, as the sheriff of Brunswick County, and his sureties. Hankins was duly appointed shei’iff, and his official year commenced the 5th of September 1837, and ended the 5th of September 1838. He appointed one Woodsides his deputy, to whom the relator Rockwell delivered, in time for collection, a number of notes and bonds upon solvent debtors. In October 1838, Woodsides received upon these obligations ten dollars, and did not receive upon them any money during the official year of the defendant Hankins. The writ in this case issued the 24th Oct. 1844. The pleas are the general issue — and stat. limitations — and covenants performed. On the trial, the plaintiff offered to prove a demand made on Woodsides in 1842: the Court rejected the evidence. The 25th of Feb. 1843, the plaintiff caused a suit to issue against the defendant for the same cause of action. At December term, the defendant appeared, when the case was put to issue, aud at June term 1844, the plaintiff was called and judgment of non-suit enier-ed against him. Ilis Honor instructed the jury, that the official year of the defendant Hankins ceased on the 5th of Sept. 1838, and the deputation of Woodsides ceased at the same time ; and therefore the defendant was not liable on this bond, for the ten dollars received by him in Oct. 1838 ; and as to the breach for neglect for not collecting, the defendants were protected by the statute of limitations.

Under these instructions, the jury found a verdict for the defendants, and from the judgment thereon the plaintiff appealed.

Badger, for the plaintiff.

Strange, for the defendants.

Nash, J.

In the instructions of his Honor, we entirely concur. The office of tho sheriff Hankins continued for one year, and ended on the 5th Sept. 1838. Kirk and Coble, 2 Dev. 489. Slade and others v. the Governor, 3 Dev. 365. The deputation to Woodsides ceased with the power creating it. The trunk falling, the branches necessarily fall with it. The defendant then was not liable for the ten dollars received by him in Oct. 1838, and the evidence of a demand of it was properly rejected by the Court. Nor are they answerable for the breach of the bond in net collecting. The defendants are protected by the statute of limitations. The act provides that all suits on sheriff’s bonds and others, “shall be commenced and prosecuted within six years after the right of action has accrued, and not afterwards.” Rev, St. ch. 65, s. 82. In the present case, the sheriff’s official year expired the 5th September, 1838. The plaintiff’s cause of action existed at or before that time, and the statutory bar became complete the 5th of September 1844. In order to get rid of this difficulty, the plaintiff relies upon the fact, that he had brought a suit on this same ca/use of action in 1843, at which time the statute interposed no

bar; and that this suit was instituted within twelve months after the termination of the first at June term, 1844. Under the pleadings in the case, the question does not arise. If the plaintiff intends to rely upon the previous suit in order to avail himself of it, he ought to have replied specially — setting out the former suit, and showing where it was commenced and when it terminated. He has not done so. In practice, when no replication is entered actually, a general one is understood, Worth v. Fentress, 1 Dev. 419, and so it must be under' stood here. The evidence of the prior suit was altogether irrelevant. Had the question by proper pleading been brought before the Court, the reason assigned by his Honor would have been an ample reply to the plaintiff’s replication. In the 8th section of the act we are considering, and under which the question arises, there is no such saving as is contained in the 4th section — allowing to the plaintiff a year after a judgment arrested or reserved to bring a new,action, and which, by an equitable construction, has been extended to non-suit j nor is it in pari materia with the actions enumerated in the preceding sections of the act, and to which the 4th section is by its terms limited. This is an action on a penal bond. Brown v. Franklin, 3 Mur. 213. Clark qui tam v. Rutherford, 3 Mur. 237.

Per Curiam, Judgment affirmed»