The plaintiffs excepted to his Honor's refusal to permit recovery of $2,500 as a forfeiture to the State for the use of the county under the provisions of C.S. 8051. The exception is not tenable. The penalty prescribed may be recovered (1) where upon demand the sheriff fails, neglects, or refuses to make settlement or to render an account to the county treasurer and auditing committee, or (2) where after account had or settlement made the sheriff fails, neglects, or refuses to pay over the amount rightfully found to be due. In the record neither of these conditions appears. There was a repleader before the referee, and in accordance with the amended pleadings, the case was heard and determined upon the single theory that the defendant "had failed to pay over" the amount which the plaintiffs claimed to be due. Davenport v. McKee,98 N.C. 500; Williamson v. Jones, 127 N.C. 178.
On the plaintiffs' appeal there is
No error.
STACY, J., not sitting.
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