Green ex rel. Anderson v. Commissioners of Cherokee County, 67 N.C. 117 (1872)

June 1872 · Supreme Court of North Carolina

67 N.C. 117

S. M. GREEN to the use of H. ANDERSON vs. THE COMMISSIONERS OF CHEROKEE COUNTY.

Upon a note given before the adoption of the present Constitution, by the Chairman of a County Court, expressed to be for the County, partial payments were made by the Board of Commissioners before suit brought; Held, that it was not necessary for the plaintiff to show, that the said Chairman had authority to give the note, or demand and notice before suit.

Civil action, tried before Cannon, J, at Spring Term, 1871, of the Superior Court of Cherokee. It was commenced before a Justice of the Peace,- for a balance due on a note, in the following words :

“ On or before the 1st Monday in September, 1858, I, for the County of Cherokee, promise to pay S. M. Green one hundred dollars, for value received of him. This 6th day oí January, 1854.

(Signed.) N. S. IIOWELL, Chairman.

Attest: Drury'Weeks.”

The alleged consideration was land bought for county purposes.

The Justice gave judgment against the plaintiff, and he appealed to the Superior Court.

The Court-house having been destroyed by fire in 1865, the plaintiff offered to show by the subscribing witness to the note,who-was Clerk of the County. Court when the note was given, that Iiowell was Chairman, and duly authorized to execute the note.

The defendants objected to'the testimony; but it was admitted. The plaintiff then proved that payments were made on the note by a former Board of Commissioners, in October, 1868, and May, 1870.

Defendants moved to dismiss the action, because the complaint did not aver notice and demand before suit. Motion overruled.

Judgment for plaintifl. Appeal by defendants.

Gudger, for the plaintiff.

No counsel for the defendants.

Reads, J.

The complaint is, that the County of Cherokee owes the plaintiff a balance for a tract of land bought for county purposes, and that the defendants are th,e Commissioners of the county.

1. It is objected, that the debt was not contracted by the present Board of Commissioners, the defendants; but, if at all, by the County Court, under the old system. There is no force in that objection, because it is the same county, and the present Board is the successor of the County Court.

2. The fact that the Board of Commissioners, under the new system, has recognized the validity of the claim and made several part payments, fully answers the objections as to the competency of the evidence to prove the authority of the Chairman of the old County Court to contract the debt, and. the alleged want of notice.

There is no error.

Per Curiam. Judgment affirmed.