
    J. F. SHACKELFORD AND WIFE v. H. L. STATON.
    
      Action of Tort — Superior Court Cleric — Failure to Index Judgment — Statute'of Limitation — When Right of AcUon Accrues.
    
    1. In an action of tort against a clerk of the Superior Court for failing- to index a docketed judgment as required by section 488 of The Code, section 155 (2) of The Code prescribing three years as the time within which an action must be brought on a liability created by statute, other than a penalty or forfeiture, unless some other time be mentioned in the statute creating it, is applicable.
    2. If for such neglect, action had been brought against the clerk on his official bond, section 154 (1) of The Code (the six year statute) would apply.
    3. The statute of limitation begins to run against a cause of action given by section 433 of The Code, in favor of a judgment-creditor against a clerk of the Superior Court for failure to properly index the judgment, at any time after such failure and during the term of office of the clerk. (Hughes v. New-some, 86 N. C., 424, distinguished.)
    Civil aotioN, against the defendant, former clerk of the Superior Court of Edgeoombe County, for damages resulting from his failure to properly index a judgment, tried before Mclver, J., at April Term, 1895, of Edgecombe Superior Court. His Honor being of opinion that, upon the facts as alleged in complaint, the action was barred by the statute of limitation, gave judgment accordingly and plaintiff appealed. The facts are fully stated in the opinion of Associate Justice Montgomery.
    
      Mr. John L. Rridgers, for plaintiffs (appellants).
    
      Mr. S. C. Connor, for defendant.
   Montgomery, J.:

TJpon these facts alleged and admitted, the court below, upon the pleadings, was of the opinion that the action was barred by the statute of limitations, and gave judgment against the plaintiff. It is insisted for the plaintiff in this Court that the statute of limitations did not begin to run until some consequential damage had occurred to the plaintiff’s rights. If this proposition should be held to be correct, we see no reason why the time at which this consequential damage occurred should not be fixed when the deed of trust was made, as well as when the land was sold under the deed. The execution of the deed of trust itself was injurious in many ways to the property rights of the plaintiff, and if-that act should be fixed as the time at which the statute should begin to run, then this action is barred, as will hereafter appear. It is also contended for the plaintiff that section 155 (2) of The Code, the three years’ statute — “An action upon a liability created by statute other than a penalty of forfeiture, unless some other time be mentioned in the statute creating it” — does not apply to the facts of this case, but that section 158 (10 years) does. We are of the opinion 'that section 155 (2) is the statute applicable to the facts 'in this case, for this action is founded upon a liability created by statute (Section 433 of The Code) and there is no other time mentioned in this statute fixing a bar to a cause of action accruing under it. We are of the opinion further that the liability of the defendant was a continuous one, beginning from the day on which he failed to properly index the judgment (it was docketed within the time required by law), and continuing until he ceased to be clerk of the court in December, 1886 ; and that therefore the plaintiff could have brought her action on any day in the intervening time, or within three years after he ceased to be clerk, and not later. This case is distinguishable from that of Hughes v. Newsome, 86 N. C., 424. There, the defendant Sheriff, on an order directed to him by the cleric, in a suit for the recovery of personal property (horses), to take the property from the defendant and deliver it to the plaintiff, seized the property but returned the same to the defendant, upon the defendant’s giving him an undertaking, which was not only not according to the requirements of the statute in such cases but was absolutely void. There the Court held that this default of the sheriff was absolute and complete; that there was nothing else to be done by the sheriff; that the right of the plaintiff to bring his suit against him at once accrued, and that the plaintiff could recover full damage if he should make out his case. In the case before us it was the duty of the defendant clerk, every day during his continuance in office while the judgment was a lien, to have had it. properly docketed and indexed. It is to be observed that this action is in the nature of tort, and is prosecuted against the clerk alone. If it had been brought on the official bond of the defendant, Section 154 (1) of The Code, the six year statute, would apply. There is no error.

No Error.  