State Ex Rel. Nixon v. Bagby

52 N.C. 4

• Court: Supreme Court of North Carolina
• Decided: December 5, 1859
• Status: Published

Opinion

Pearson, C. J.

Stokes was a competent witness; for, although the note was payable to him, the beneficial interest belonged to Nixon, and the contract of the defendant, as evidenced by the receipt, was to collect the note for Nixon. The suit was, therefore, properly brought in his name as relator and for his benefit, and its decision could not, in any point ef view, affect the interest of Stokes, *or the record in the ease be used as evidence for or against him.

No demand is necessary where the breach assigned is for negligence in failing to collect.

As the officer had special instructions, “ to proceed immediately.,'” a delay of sixteen days amounted to negligence under the circumstances ; and, besides, five months elapsed after the death of the debtor before the writ issued, during which time he took no steps. This, without explanation, amounts to negligence.

The question as to damages is settled by statute, Revised Code, chapter 78, section 3.

There is no error.

Pee Curiam,

Judgment affirmed.