Wills v. . Sugg , 25 N.C. 96 ( 1842 )

In February, 1841, the relator demanded a settlement of Sugg, the constable. Sugg then admitted that he had collected for the relator the sum of forty dollars, but that he, then and (98) at that place, had neither money nor his papers with him. On 28 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 of 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 there 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.

PER CURIAM. No error.

Cited: Waring v. Richardson, 33 N.C. 79; Cole v. Fair, 46 N.C. 175;Bryant v. Peebles, 92 N.C. 177; Moore v. Garner, 101 N.C. 377.

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