#### THE STATE ON THE RELATION OF WILLIAM H. WILLS vs. JOEL S. SUGG AND OTHERS.

December 1842.

In cases where a demand of a claim- is required before suit can be brought, as against a constable for money collected, when the demand is made the claim is turned into an ordinary debt, and it becomes the duty of the debtor to pay the creditor in a reasonable time.

Appeal from the Superior Court of Law .of Edgecomb county, at Fall Term, 1842, his Honor Judge 'Battle presiding.

This was an action of debt upon a constable’s bond, executed by the defendants,-upqn the appointment of Sugg as constable, in the co'unt'y of Edgecomb, for the year 1888. — ■ Upon the trial, the relator, after proving the execution of the bond, produced a receipt given by the constable in the year 1888, for the collection of several claims against different persons, and among others, two against one F. Jones, for about forty dollars. He then called a witness, who stated that, some time in February, 1841, he was present when the relator called on the defendant Sugg and demanded a settlement ; to which Sugg, admitting that he had collected the Jones’ claims, replied that he had no money nor his papers with him, but that, if the relator would appoint a day, he would come to a settlement. The relator thereupon said that he had waited a long time and he would not have a settlement by piece-meal, and declined to appoint a day. This occurred in the town of Tarborough, within six miles of the residence of Sugg and eighteen of that of the relator, Sugg and the relator living about twelve miles apart; and it was after the defendant Sugg had gone out of office. The writ was issued in the month of April following. The counsel for the defendants objected that there was no de-*97raand, sufficient to sustain the action, made upon the fendnnt Sugg, prior to the bringing of the action, and the fair interpretation of Sugg’s reply, that “he had no money nor his papers by him,” was, that he did not then have the money or papers about his person, but he had them at home, and there was therefore no refusal to pay or settle.-— The counsel for the relator on the other hand contended,that, upon the demand testified to by (he witness, the defendant Sugg ought immediately to have paid or tendered the money, admitted- to have been collected by him, or that he ought, after that time, to have sought out the relator, especially as they both resided in the same county, in a reasonable time, and have settled with and paid him. The court held, and so instructed the jury, that the demand' stated by the witness, ir believed, was sufficient — that the defendant Sugg was bound then and there to have paid or tendered the money he had collected, and that failure to do so was a breach of his official bond, for which he was responsible, and that what the relator afterwards said about a piece-meal settlement, furnished no excuse for such breach. There was a-verdict for the plaintiff, and judgment-being rendered pursuant thereto, the defendant appealed’.

B. F. Moore for the defendants contended,

that Sugg was only bound to account as an agent, and that the plaintiff must shew a misapplication of the money, or a breach of trust. Governor, use of White v Miller, 3 Dev. & Bat. 55. Potter v Btnrges, 1 Dev. 79. 2dly. That trover would not lie, on such a demand, for the papers. 3dly. That when the relator refused to appoint a day, and- said he would not settle by piece-meal, in effeet he said, you need not offer the Jones money, I’ll not receive it. Therefore, the defendant Sugg, was under no obligation to go to the relator, and take the money. Mann v Vick, 1 Hawks, 427.

Badger 6/ Whitaker for the plaintiff, contra.

Daniel, J.

In February, 1841, the relator demanded a *98settlement of Sugg, the constable. Sugg then admitted, that had collected for the relator, the sum of forty dollars, but that he, then and at that place, had neither money nor his Papers with hint- On the 28th of April, following the demand, the relator issued his writ against Sugg and his sureties. The parties lived about twelve miles apart. On the trial the defendants objected, that there had not been a sufficient demand to sustain the action. The relator insisted that the demand was sufficient, and that Sugg, after that event, in a reasonable time, ought to have sought him and made a settlement. The court charged the jury that the demand was sufficient. And we think, that the time, which intervened between the demand and the issuing of the writ, was amply sufficient.for Sugg to have sought out the relator and made the settlement, as by law he was then bound to do. For, although, according to the previous decisions, there must be a request before suit, yet the demand turns this into an ordinary debt, and it renders it the duty ot the debtor to seek the creditor in a reasonable time. We therefore think, that there was a breach of the bond before the writ issued. The remark of the judge, that fhere was a breach of the bond instantly on the demand and refusal to pay, if erroneous, was altogether immaterial in this case, and therefore not. a ground for a new trial. The relator proved a demand, and more than a reasonable time after for a settlement, before he issued his writ. The judgment must be affirmed.

Per Curíame,. Judgment affirmed.