Opinion
(June Term, 1845.)
1. In an action by warrant against a constable's sureties under the act, Rev. Stat., 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.
2. An action under that statute can only be barred by the same length of time that bars an action on the bond.
APPEAL from MARTIN, Spring Term, 1845; Dick, J.
Heath for plaintiff.
No counsel for defendants.
This action commenced by a warrant, and the plaintiff declares therein that the defendant owed him the money therein claimed. The case is: One Fielding P. Turner was in 1838 duly appointed a constable in Martin County, and, on 9 January of that year executed his official bond with the defendants as his sureties. On 22 February, 1838, the plaintiff put into the hands of Turner, as such constable, two several judgments for collection, both against John Wilson, one for $23.78 3/4 and the other for $20.47. During 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 balance 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 (514) 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 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.
If the judge committed any error it was one of which the defendants have no right to complain. We are disposed to think the plaintiff was entitled to a verdict, as well upon the judgment for $20.47 as for the other. It is true, the act of (515) Assembly under which these proceedings have taken place gives the remedy before a single magistrate where money has been received. But we must consider the Legislature to use the term money as it is known to the common law, not, as in all cases, implying the thing itself, but something received in the place of it. Thus an action for money had and received to the use of the plaintiff will not be against the defendant for stock, bills of exchange, notes or checks, unless they were received by him for the plaintiff as money, and so considered at the time; the principle being, in all cases, that if a thing be received as money it may be treated and sued for as money.
In this case the claim which Turner, the constable, had against Wilson was for money due on a judgment. Instead of levying on the property of Wilson and selling it, as he might have done, he receives from him, in the place of the money, property and labor. At the time the property was transferred to Turner and the labor performed, it was considered by both parties as so much money, paid by Wilson to the constable for the use of the plaintiff. We are of opinion his Honor committed no error in so charging the jury. But there is another ground upon which we think the plaintiff is entitled to recover this amount. It is well settled that when an agent receives goods to sell, while they remain in his hands the action for money had and received will not lie against him. But in some cases a sale and receipt of the money will be presumed, as when the property is readily convertible into money and a considerable time has elapsed since their reception, and no proof is given to the contrary, or when the agent, when called on, refuses or declines to give any account of the goods. In these cases a sale and receipt of the money will be presumed.
Here the judgment was put into the hands of Turner in February, 1838, and the action is brought in 1844. We think the judge might, in analogy to the principles established in the above cases, have instructed the jury that, from the length of time which had elaspsed [elapsed], the law presumed Turner had received money upon this (516) judgment.
We concur with his Honor on the statute of limitations. — The defendants are charged by virtue of the act of Assembly, on their bond as sureties for the constable, Turner, and the time of limitation is six years, whereas not more than five years and one month had elapsed.
PER CURIAM. No error.
Cited: S. v. Wall, 30 N.C. 14; Cavaness v. Troy, 32 N.C. 318; Rogers v. Nuttall, ib., 349.