#### BOARD OF EDUCATION v. TOWN OF GREENVILLE.

(Filed February 24, 1903.)

LIMITATIONS OF ACTIONS — Municipal Corporations — Towns and Cities — The Code, Sees. 756 and 757.

Under The Code, sections 756 and 757, a claim against a town must he presented within two years after maturity or it is barred.

AotioN by the County Board of Education of Pitt County against the Town of Greenville, heard by Judge George H. Brown, at October Term, 1902, of the Superior Court of Pitt County. From a judgment for the defendant, the plaintiff appealed.

Skinner & Whedbee, for the plaintiff.

Jarvis & Blow, for the defendant.

Walker, J.

This action was brought by the plaintiff to recover the amount of certain fines and penalties which were collected by the defendant, and was heard in the Superior Court upon a case agreed. It appears therefrom that the plaintiff filed with the Board of Aldermen of the defendant, the town of Greenville, on the 3d day of April, 1902, a claim for the fines and penalties collected by said town for violations' of the criminal law of the State and the town ordinances during the three years immediately preceding said date, and demanded of the defendant that the claim be audited and that the amount of the fines and penalties so received during the said years be paid to it. The defendant admitted its liability to account with the plaintiff for the fines and penalties collected during the two years immediately preceding the date of the demand, and the claim for so much as was received during the said two years was audited and paid by the defendant, but the defendant refused to audit and pay any *5part of the claim preferred for the year commencing April 3, 1899, and ending April 3, 1900, and denied its liability to account with the plaintiff for the same, its contention being that, by sections 756 and 757 of The Code, the plaintiff can recover only the fines and penalties collected during the two years immediately preceding the date of the demand upon it.

It is provided in section 756 of The Code that any claim against a county, city or town shall be presented to the chairman of the board of commissioners or to the chief officer of said county, city or town, as the case may be, within two years after the maturity of said claim, or the bolder of the same shall be forever barred from a recovery thereof. The language of this section is plain and explicit, and there is room for but one construction of it. This Court has said that the provision of the statute is not in strict terms a limitation of the time within which an action may be prosecuted, but that it imposes upon the creditor the duty of presenting bis claim within a prescribed period of time, and, upon bis failure to do so, forbids' a recovery in any suit thereafter commenced. Wharton v. Commissioners, 82 N. C., 11. In a later case, Davis, J., speaking for the Court, and referring to this section, said: “This is a statute of limitation, and such claims against the county should be presented within two years after maturity.” Lanning v. Commissioners, 106 N. C., 505. We think it is unnecessary to inquire or to decide whether the statute is strictly one of limitation, or whether it merely imposes a duty upon the bolder of a claim against a municipal corporation, the performance of which is a condition precedent to his right of recovery. In either view of the nature of the statute, the claimant, by its very words, is “barred from a recovery” of any part of the claim that did not mature within the two years immediately preceding the date of bis demand, and this conclusion as to the effect of the statute is all sufficient for the disposition of this appeal.

*6The learned counsel for the plaintiff, in bis argument before us, cited the case of School Directors v. Asheville, 128 N. C., 249, and several other cases of a like kind. In those cases, the statute now under consideration was not pleaded, but the defendant relied upon the general statute of limitations, and the question in this case was not discussed. The cases therefore are not in point.

The Judge who beard this case in the Court below held that section 756 of The Code barred a recovery of the amount of the fines and penalties collected during the year next preceding April 3, 1900, for which this suit was brought, and rendered judgment for the defendant dismissing the.action. In this decision we fully concur.

Per, Curiam: Judgment Affirmed.