Opinion
(June Term, 1846.)
1. 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.
2. By the practice in this State, if no replication is actually entered, a general one is understood.
3. When the statute of limitations is pleaded to an action on the bond of a sheriff, clerk, etc., 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 nonsuit, discontinuance, etc. In suits of this kind there is no such saving against the operation of the statute.
APPEAL from BRUNSWICK Spring Term, 1846; Dick, J.
Badger for plaintiff.
Strange for defendants.
Debt, brought on the official bond of the defendant Hankins, as the sheriff of Brunswick County, and his sureties. Hankins was duly appointed sheriff, and his official year commenced 5 September, 1837, and ended 5 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 $10, and did not receive upon them any money during the official year of the defendant Hankins. The writ in this case issued 24 October, 1844. The pleas are the general issue, and statute of limitations, and covenants performed. On the trial the plaintiff offered to prove a demand made on Woodsides in 1842. The court rejected the evidence. On 25 February, 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 cause was put to issue, and at June Term, 1844, the plaintiff was called and judgment of nonsuit entered against him. His Honor instructed the jury (429) that the official year of the defendant Hankins ceased on 5 September, 1838, and the deputation of Woodsides ceased at the same time; and, therefore, the defendant was not liable on this bond for the $10 received by him in October, 1838; and as to the breach of 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.
In the instructions of his Honor we entirely concur. The office of the sheriff (Hankins) continued for one year, and ended on 5 September, 1838. Keck v. Coble, 13 N.C. 489; Slade v. Governor, 14 N.C. 365. The deputation to Woodsides ceased with the power creating it. The trunk falling, the branches necessarily fell with it. The defendant was not then liable for the $10 received by him in October, 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 not collecting. The defendants are protected by the statute of limitations. The act provides that all suits on sheriffs' bonds and others "shall be commenced and prosecuted within six years after the right of action has accrued, and not afterwards." Rev. Stat., ch. 65, sec. 82. In the present case the sheriff's official year expired 5 September, 1838. The plaintiff's cause of action existed at or before that time, and the statutory bar became complete 5 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 cause of action in 1843, at which time the statute (430) 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 especially, 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, 12 N.C. 419; and so it must be understood 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 section 18 of the act we are considering, and under which the question arises, there is no such saving as is contained in section 4, allowing to the plaintiff a year after judgment arrested or reserved to bring a new action, and which, by an equitable construction, has been extended to nonsuit; nor is it in pari materia with the actions enumerated in the preceding sections of the act, and to which section 4 is by its terms limited. This is an action on a penal bond. Brown v. Franklin, 7 N.C. 213; Clark v. Rutherford, ibid., 237.
PER CURIAM. Judgment affirmed.
Cited: Freshwater v. Baker, 52 N.C. 256; Trull v. R. R., 151 N.C. 549.