Western sentinel. [volume] (Winston [i.e. Winston-Salem], N.C.) 1856-1886, 1884-01-17
WINSTON, N. C., THURSDAY JANUARY ~ 1884

OF communications With Lemly about
the agency is untenable as he acted
for his principal in the management of
the county agency, and they were di-
rectly in furtherance of its objects.
LII. The issue as to Lemly's un-
dertaking to discharge the trusts as
sumed by his principal on his behalf,
was material since his acts done with
the intestates assent were in legal eff
feet the acts of the intestate This
agency gave validity to the alleged
demand, rs if made upon Lash himself.
N. The court was asked to charge
/ the jury that there was no evidence to
support an affirmative Judgment upon
the joint issue as no demand was made
on Lemly ''in the presence OF Lash
The verdict is to this effect and the
legal sufficiency of the finding Is
matter to be decided by the court. As
the jury find that Lemly was employ
ed by Lash to attend to the special
matter of the county agency, a demand
on him as such was in law a demand
on the other and as effectual in his alb
sence as in his presence. The essential
fact is the demand properly made as
required by law-the absence of Lash
in sick room near by-is an imma-
terial incident and does not impair the
efficacy of the act.
1t is further objected that the judge
directed special finding upon the is
sue instead of leaving it to the discre-
tion of the jury, this being an action
upon a money demand. Code Sec.
409.
The concluding clause of this sec
ton invests the judge with power in
all cases except when the action is for
money only or specific real prop
erty,' to '.direct the jury to find a
special verdict in writing" The pres
ent action is not 'for the recovery of
money only" but is to close up and
settle long continued trust and to
this end to have an account stated of
the past business of the agency.
That this is not an excepted action,
is fully settled by past adjudications.
Pierce VS.. Cox, s3 n. C. 261. Wynne
VS.. Prairee, S6 n. C. 73. Rogers vs.
Moore, Ibed So.
But we're all unable to feel the force
of the objection to the verdict which
merely finds the facts as they are
shown and is an appropriate response
to the inquiry submitted.
V. The court was asked to charge
that the letter written by G. b. Wat
son dated May 5, 1873, WAS in law a
demand for an account and that the
relations between the county authori-
ties and their agent thereby became
hostile and put the statute Of limita-
tions in operation.
This the court declined to charge,
remarking that there is no form nee
essary and that "it does not purport to
be demand on It's face, as | like it. "
The letter set out as an exhibit is in
this form:
WESTON, n. c., May 5, 1873.
Hon. I. G. LASH,
Dear Sir:-AIr. Belo having COM
menccd an action against the county
of Forsyth upon certain bonds, pur-
porting to have been issued by said
county, | am requested by the board
of commissioners in order that they
may be able to answer the complaint
in the action with out delay, to re-
quest you to submit them between now
and Monday the 18th inst report
setting forth the following particulars:
1st The dates at which the vari-
Gus bonds purporting to have been is
sued by the county were sold, naming
the number and amount of each bond:
2nd. The amount realized from the
sale of each bond, separately stated.
9rd. Who were the purchasers of
each, naming purchases and number
of bond purchased.
4th. When the several sales were
made.
9th. What amount has been paid
and what number of bonds paid Off.
9th. What amount Of money has
been levied and collected.
7th. The whole amount of the al
legged debt against the county now out
standing.
9Th. The present holders of the
said bonds as far as you can ascertain.
Yours Respectfully,
; G. b. WATSON.
This is manifestly but an applica-
ton for information to the only source
from which it could be obtained, to be
used in defending the county in an ac-
ton brought by one who held such
bonds. It was not a demand for an
account of the transactions of the
agency with view to it's termination
and the judge certainly did no wrong
to the defendants in leaving the COM
munication with other evidence TO the
jury to enable them to respond to the
issue. Nor was he in any degree in
yading the province of the jury in dis
regard of the direction of the act of
1896 (Code Sec. 413,) in making the
remark that the communication does
not upon its face purport to be such q
demand as the defendants claimed in
the proposed instruction that is, as we
understand, peremptory demand for
an account.
VI. But the main and essential
question to the solution of which all
the issues pointed is as to the bar of
the statute and the effect of the call
contained in the Watson letter in put
ting it in motion.
The verdict settles the fact that there
was no demand until the month of
August 1877, none being shown in the
Watson letter sufficient to set the stat
ute in operation. 1t is true that an
agent in possession of funds which he
ought to pay over to his principal is
not III default so as to be exposed to
an action, and command is required
t. afford him an opportunity to pay.