A clerk can only be proceeded against on motion for a summary judgment for money that has remained in his hands for three years, where he has admitted money to be due in the manner prescribed by the 1st section of the 73d chapter of the Revised' Code.
MotioN for summary judgmcmt, tried before OsbobNE, J., at the Pali Term, 1860, of Buncombe Superior Court
This was an action beginning by motion, brought by plaintiff, as county trustee of Buncombe, to recover of the defendants as sureties to the official bond of W. T. Coleman, late clerk of the Superior Court of Buncombe, for monies paid to their principal at April and October Terms, 1851, in his official capacity. Mr. Coleman was sworn in as clerk at October term, 1819, for four years. He went out of office in October 1851, and died soon after. The amount alleged t'o be due was ascertained by an investigation and report of a committee of finance, which was admitted as proof, but no report of money, in the office, had been made by the clerk, and it was contended that the form of proceeding did not apply in this case, and the Court being of this opinion, the plaintiff submitted to a nonsuit and appealed.
Gaither, for the plaintiff.
Merrimon, for the defendants.
PeaiísoN, C. J.
We concur in the'opinion of his Honor, that the summary mode of proceeding can only be resorted to where the clerk has “ admitted money to be ¿W’ in the manner ¡irescribed by the 1st section, chap. 73 of the Revised Code. On a perusal of the statute, this is so clear as not to admit of discussion.
Pee Cueiam, Judgment affirmed.