State Ex Rel. Taylor v. Galbraith

Reade, J. The record does not show the plea of conditions performed, no breach, on the part of the defendant; and the •ease does not show a demand before suit on the part of the plaintiff, but it was agreed at the bar that the case should be considered as if the plea were in, and as if demand had been •made. The bond sued on was dated' 23d February, 1857, and the *411 suit was not commenced until 1867, after a lapse of more than six years, and therefore the action would have been barred, but for a series of statutes which provide that the time elapsing from May, 1861, to January, 1870, shall not be counted. Lee Smith v. Rogers, 65 N. C. 181, and Plotts v. W. N. C. R. R., 65 N. C. 74, and the eases there cited. The defendants proved that they had been sued by the plaintiff on the same bond, and that there was judgment against "them, and that they had “ paid,” that j udgment, and insisted, that in law, that supported their plea of “ payment.” There is no plea of former judgment so as to estop the plaintiff) if indeed it -would have that effect, and under the plea •of “ payment ” of the claims involved in this suit, it was competent for the plaintiff to show, and he did offer evidence to show, that the former suit was not upon the same claims involved in this. So that the payment of other claims does not, either in law or fact, support the plea of payment of these claims. The defendant can take nothing by this objection. The real question in dispute is, whether the defendants are liable upon the bond of 1857, or whether the remedy of the plaintiff is not upon the bond of 1856. The principal defendant Galbraith, was Constable for 1856 and for 1857; his bond on which this suit is brought, is dated 23d February, 1857. The claims were put into his hands for collection in February, April, June and July, 1856, from eight to twelve months prior to the date of the bond sued on. It was his duty to collect them immediately. There was no direct evidence that he collected them in 1856, .and none that they were in his hands in 1857. If the claims were collected in 1856, the suit ought to have been upon the bond of 1856. (State v. Lackey, 3 Ire. 25,) but if they were not collected in 1856, and were in his hands after he gave the bond sued on, in 1857, his possession of the claims, although they had been put into his hands the year before, would have been evi *412 dence, from which a new contract to collect might have been inferred, so as to make his sureties for 1857 liable. State v. Johnson, 7 Ire. 77. It was therefore incumbent upon the'plaintiff to prove that the claims were not collected in 1856, and that they were in the Constable’s hands after the date of the bond sued on February, 1857. The burden was upon the plaintiff. He relied solely upon the facts that the claims were put into the hands of the Constable and had never been returned. This is entire ly consistent with the supposition that they were collected in 1856. The presumption that they were, is at least as strong as the presumption that they were not, and then the burden of proof being upon the plaintiff he must fail. At the least, the defendants were entitled to have the question submitted to the j ury; but his Honor held, that if the claims were put into the hands of the Constable in 1856, and that the debtors were solvent in 1856, and continued to be solvent in 1857, the defendants were liable upon the bond of 1857. At least so we understand the charge. It is true that the language of the charge is, “ that the plaintiff was entitled to receive the amount of all the claims, &c., which were good and collectable during the year 1856, and continued so during the year 1857.” When we speak of a good claim, or a solvent claim, we mean a claim upon a solvent man. This charge leaves out of view the fact that the claims might have been collected in 1856, and seems to convey the idea that if the claims, or the debtors, were good or solvent during both years, then the plaintiff was entitled to recover, no matter whether the claims were collected in 1856 or in 1857, or whether they had ever been collected at all. Whereas the law is that if the claims were collected in 1856^ the defendants are not liable upon the bond of 1857. There is error. Per Curiam. Venire de novo.