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subject to attachment in the hands of the insurance company." An attachment proceeding is in effect "an action by the principal debtor (the defendant in the action) in the name of the plaintiff (the attaching creditor) against the garnishee;" Balk v. Harris, supra; and therefore the amount due can be ascertained in such action. In Insurance Co. v. Moore, 63 Miss., 419, it was held that such liability after loss can be attached before adjustment, even when the insurance company denies any indebtedness to the assured. Here, it affirmatively appears that the company admitted its indebtedness' and that the amount thereof even was undisputed. In Peace v. Jones, 7 N. C., 256, notes not yet due were held liable to garnishment. Where the contrary doctrine to the above decisions is held, it is based upon the wording of a local statute different from that in New ork. The loss is not a contingent liability, which is not attachable, but a prima facie liability, and the liability and its amount are ascertainable in the attachment proceeding.

3. The plaintiff could not have set up his claim of a personal property exemption in the New York action, and the defendant is protected by that judgment and payment thereunder. Exemption laws are a protection only against execations issued in the State where the claimant resides. They have no extra territorial effect. Balk v. Harris, 122 N. C., 64; 45 L. R. A., 257, citing Railroad v. Maggard, 6 Col. App., 85; Story on Conflict of Laws, Sec. 539. "Exemption laws are not a part of the contract; they are a part of the remedy and subject to the law of the forum." Railroad v. Sturm, 174 C. S., 710, and cases there cited; Freeman on Executions, Sec. 209.

No Error.



(Filed February 24, 1903.)

LIMITATIONS OF ACTIONS-Municipal Corporations-Towns and Cities-The Code, Secs. 756 and 757.

Under The Code, sections 756 and 757, a claim against a town must be presented within two years after maturity or it is barred.

ACTION by the County Board of Education of Pitt County against the Town of Greenville, heard by Judge George H. Brown, at October Term, 1902, of the Superior Court of PITT County. From a judgment for the defendant, the plaintiff appealed.

Skinner & Whedbee, for the plaintiff.
Jarvis & Blow, for the defendant.

WALKER, J. This action was brought by the plaintiff to recover the amount of certain fines and penalties which were collected by the defendant, and was heard in the Superior Court upon a case agreed. It appears therefrom that the plaintiff filed with the Board of Aldermen of the defendant, the town of Greenville, on the 3d day of April, 1902, a claim for the fines and penalties collected by said town for violations of the criminal law of the State and the town ordinances during the three years immediately preceding said date, and demanded of the defendant that the claim be audited and that the amount of the fines and penalties so received during the said years be paid to it. The defendant admitted its liability to account with the plaintiff for the fines and penalties collected during the two years immediately preceding the date of the demand, and the claim for so much as was received during the said two years was audited and paid by the defendant, but the defendant refused to audit and pay any


part of the claim preferred for the year commencing April 3, 1899, and ending April 3, 1900, and denied its liability to account with the plaintiff for the same, its contention being that, by sections 756 and 757 of The Code, the plaintiff can ecover only the fines and penalties collected during the two years immediately preceding the date of the demand upon it.

It is provided in section 756 of The Code that any claim against a county, city or town shall be presented to the chairman of the board of commissioners or to the chief officer of said county, city or town, as the case may be, within two years after the maturity of said claim, or the holder of the same shall be forever barred from a recovery thereof. The language of this section is plain and explicit, and there is room for but one construction of it. This Court has said that the provision of the statute is not in strict terms a limitation of the time within which an action may be prosecuted, but that it imposes upon the creditor the duty of presenting his claim within a prescribed period of time, and, upon his failure to do so, forbids a recovery in any suit thereafter commenced. Wharton v. Commissioners, 82 N. C., 11. In a later case, Davis, J., speaking for the Court, and referring to this section, said: "This is a statute of limitation, and such claims against the county should be presented within two years after maturity." Lanning v. Commissioners, 106 N. C., 505. We think it is unnecessary to inquire or to decide whether the statute is strictly one of limitation, or whether it merely imposes a duty upon the holder of a claim against a municipal corporation, the performance of which is a condition precedent to his right of recovery. In either view of the nature of the statute, the claimant, by its very words, is "barred from a recovery" of any part of the claim that did not mature within the two years immediately preceding the date of his demand, and this conclusion as to the effect of the statute is all sufficient for the disposition of this appeal.


The learned counsel for the plaintiff, in his argument before us, cited the case of School Directors v. Asheville, 128 N. C., 249, and several other cases of a like kind. In those cases, the statute now under consideration was not pleaded, but the defendant relied upon the general statute of limitations, and the question in this case was not discussed. The cases therefore are not in point.

The Judge who heard this case in the Court below held that section 756 of The Code barred a recovery of the amount of the fines and penalties collected during the year next preceding April 3, 1900, for which this suit was brought, and rendered judgment for the defendant dismissing the action. In this decision we fully concur.

PER CURIAM: Judgment Affirmed.


(Filed February 24, 1903.)

1. MORTGAGES-Assumpsit-Judgments.

A judgment creditor of a mortgagor can not maintain assumpsit against a mortgagee for a surplus arising from a sale under the mortgage and paid to the mortgagor.

2. MORTGAGES-Sale-Liens-Notice-Foreclosure of Mortgages. A mortgagee, who sells under the mortgage, is not liable to a subsequent mortgagee or judgment creditor for the surplus, unless he has actual notice thereof.

ACTION by Fannie E. Norman against B. F. Hallsey, heard by Judge Frederick Moore and a jury, at Fall Term, 1902, of the Superior Court of WASHINGTON County. From a judgment for the plaintiff, the defendant appealed.

A. O. Gaylord, for the plaintiff.

H. S. Ward, for the defendant.


CONNOR, J. L. C. Marriner and his wife, Lula, on January 9, 1893, executed to J. W. Blount a mortgage with power of sale, conveying a tract of land in Washington County, for the purpose of securing a note for $500. Thereafter, the said Blount transferred and assigned the said note and mortgage o the defendant.

The plaintiff, on the 8th day of October, 1895, recovered judgment in the Superior Court of Washington County against the said Marriner for $975, which judgment was duly docketed in said county. Thereafter, the said Blount died, leaving a last will and testament, appointing Whedbee Blount and Bettie Davenport executors. Thereafter, the defendant, in the name of said executors, and pursuant to the power of sale in said mortgage, advertised the land for sale, and on the 17th day of February, 1902, sold the same for the gum of $500, and received the purchase money. Said execntors executed a deed to the purchaser. The defendant, from the said amount, paid his note, and paid to the said Marriner the excess, to-wit, $190.50. There was then, and still is, due on the plaintiff's judgment an amount in excess of $190.50. The plaintiff had no notice of said sale or the payment of said sum to Marriner. The defendant had no other notice of the plaintiff's judgment than was afforded by the docketing thereof. Marriner's homestead was allotted to him by the Sheriff of said county on the 16th day of June, 1898, in land other than that mortgaged to Blount as aforesaid, and return thereof was duly made to the Superior Court of said county. Marriner is insolvent.

At the conclusion of the testimony, the defendant made a Lotion, pursuant to the provisions of the Act of 1897, as amended by the Act of 1899, chap. 131, for judgment of nonsuit. The Court denied the motion, and the defendant excepted. His Honor instructed the jury that if they believed the evidence, they should answer the issue in the affirmative, and the defendant excepted.

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