#### LOUIS D. WILSON vs. A. H. COFFIELD & AL.

In an action by warrant against a constable’s sureties under the Act, Rev. St. ch. 81, sec. 3, to recover moneys collected by a constable by virtue of his oí-fice, 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.

An action under that Statute can only be barred by the same length of time, that bars an action on the bond.

Appeal from the Superior Court of Law of Martin County, at the Spring Term, 1845; his Honor Judge Dick presiding.

This action commenced by a warrant, and the plaintiff declares therein, that the defendent owed him the money therein claimed. The case is : one Feilding P. Turner was in the year 1838 duly appointed a constable in Martin County, and, on the 9th of January of that year, executed his official bond •with the defendants, as his sureties. On the 22d of February 1838, the plaintiff put into the hands of Turner, as such constable, two several judgments, for collection, both against John Wilson, one for the sum of $23 78J and the other for $20 47. During the year 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 78f, 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 bal-lance 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 *514warrant 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 t¡íe smaller judgment could not be sustained, because there was no proof of any money being received for it by Turner, during the year 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.

Heath for the plaintiff.

The defendants object, 1st. Thatasu'mmary remedy before a magistrate will only lie, where actual money has been paid to the officer. The answer is, the act, being, remedial, must be construed liberally; and as, in actions for money paid, the action may be sustained, though no actual money has been paid, but only its equivalent, money’s worth, so here, as the constable received money’s worth and discharged and surrendered the claim, the proceeding under the Statute may be sustained.

The defendants object further that the Statute of limitations is a bar. A demand is necessary before suit can be brought; here the demand was made and the suit brought in 1844, and therefore this defence cannot avail the defendants.

No counsel in this court for the defendants.

Nash J.

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 *515upon the judgment for $20 47, as for the other. It is the act of 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 legisla» ture 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 oí 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 plain tiff was 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 ior 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, haye instructed the jury, that from the length of *516time which had elapsed, the law presumed Turner had received money upon this 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, Judgment affirmed.