McLendon v. Commissioners of Anson County

Read, J.

The first question is: “ Do the coupons on which the suit is brought bear interest ? If so, from what date ?’ They do bear interest from the date of their maturity. 7 Wallace, 82.

This would not have been controverted, probably, in view of the case in Wallace, if it were not that we have decided that a demand is necessary before action brought against a Board of County Commissioners. 67 N. C. R., p. 330. Alexander v. Commissioners McDowell County. And as demand was not made until 1872, although the coupons had matured several years before, it is insisted by defendant that they bear interest only from the demand in 1872. But that does not follow. The right of action may not accrue until after demand or until after a given time; while the cause of action may have existed long before. A note payable twelve months after date with interest from the date would be an instance of this. We require a demand before suit against County Commissioners in cases where it would not be required against individuals, for the reasons stated in Alexander v. Commissioners of McDowell, supra, not to fix the amount of the liability, or the liability itself on any of its incidents; but simply to give notice of the liability, andan opportunity to pay without suit.

The second question is, whether mandamus is the proper remedy to enforce the judgment; or whether after judgment another action must not be brought to obtain the writ ?•

Cui bono, another action ? It is true that a mandamus issues only w'hen the amount is ascertained ; but here it is ascertained when the judgment is rendered, and the complaint demands both the judgment aud the writ of m.andamus. This, therefore, is a civil action for a mandamus as much as it is a civil action for a money demand. Uzzle v. Commissioners Franklin County, 70 N. C. R., p. 564.

» We agree with his Honor also as to the rate of interest, six per cent, and as to the terms of the mandamus, directing the defendants to provide the means to satisfy the recovery by the levy of taxes or other efficient mode, and to pay and satisfy the recovery, and make return to the next term of this Court.

There is no error. Judgment here for plaintiff, and a writ of mandaimis in accordance with this opinion.

Pee Curiam. Judgment below' affirmed.