Opinion
(December Term, 1853.)
Where the surety to a note in a Bank has a new note, with other sureties discounted, and, by means of a check, has the proceeds of the latter note applied to the satisfaction of the former: This is a good payment of such note, and the principal in such former note becomes the debtor of such surety, even before the latter note is paid off.
A declaration, commencing and concluding in "CASE," but, in the body of it, setting forth A DEBT, under a penal Statute, SEEMS to be sufficient, without a demand FOR DAMAGES. But, whether so or not, according to the strict rules of pleading, a defect in this particular is cured by act of Assembly, Rev. Stat. ch. 3, sec. 5.
THIS was an action on the case for the fraudulent removal of a debtor, tried before his Honor Judge SAUNDERS, at Forsythe Superior Court, Fall Term, 1853.
Morehead, for plaintiff.
J. H. Bryan, for defendant.
In order to show that the plaintiff was a creditor of the person removed (one Whicker), it was proved, that Whicker had a note in the Bank at Salem, for $5000, with the plaintiff and one Preston as his sureties, which was reduced by payment made by Whicker himself, to $2323 12 cents. As to the one half of that sum, the plaintiff had discounted in the same bank a note for $3200, the nett proceeds of which was placed to his credit, and he checked for $1161 56 cents, which was received by the cashier in payment of the unsatisfied remainder due on the note of $5000, which was surrendered to the plaintiff, receipted in full. The note for $3,200 was not paid until six months after its being discounted, and some time after the date of the writ in this action.
The following is the declaration contained in the record of the case:
"NORTH CAROLINA.
"In the Superior Court of Law, for the county of Forsythe, October Term, A.D. 1853:
"John King was attached, to answer George Brooks, of a plea of Trespass in the case, c., and therefore the same plaintiff, by his attorneys, James R. McLean and John A. Gilmer, complains, for that, whereas, one Allen Whicker, on the 6th day of November, in the year of our Lord 1850, at the county aforesaid, was indebted to the said plaintiff, in the sum of $1161 56-100, for money by the said plaintiff, before that time, lent and advanced to, paid, laid out and expended for the said Allen Whicker, and at his special instance and request; and being so indebted, the said Allen Whicker, afterwards, to wit, on the day and year aforesaid, at Forsythe aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay the said sum of money, when the said Allen Whicker should be thereunto afterwards requested; and the said Allen Whicker, being so indebted to the plaintiff, George Brooks, the said defendant, John King, well knowing the premises, on the 23d day of November, 1850, in the county of Forsythe aforesaid, did remove, and aid and assist in removing, the said Allen Whicker from the said county of Forsythe, in which county the said Allen then resided, and in which county he had resided for the space of six months, or more next before, with an intent, by such removal, aiding and assisting to remove the said Allen Whicker, to delay, hinder and defraud the plaintiff, and other creditors, or some of them, in the collection of their debts, the said debt to the said George, plaintiff, still being wholly unpaid and unsatisfied, contrary to the form of the Statute in such case made and provided: by reason of the premises, and by force of the Statute in such case made and provided, the said John King became liable to pay to the said plaintiff, George Brooks, the sum of $1161 56 cents, being the said debt owing as aforesaid, by the said Allen Whicker to the said plaintiff, and thereby, and by force of the said Statute, an action hath accrued to the said plaintiff, George Brooks, to demand and have, of and from the said John King, the said sum of 1161 56 cents, above demanded.
"Nevertheless, the said defendant, John King, not as yet having paid the said sum, or any part thereof, to the said plaintiff, although often requested so to do, but to pay the same hath hitherto wholly refused, and still doth neglect and refuse, to the damage of the said plaintiff $2000, and therefore he brings his suit."
His Honor was of opinion, and so instructed the jury, that the facts above disclosed constituted the plaintiff a creditor of Allen Whicker, to which the defendant excepted.
Verdict for the plaintiff. Rule for a venire de novo. Rule discharged, judgment, and appeal to this Court.
The case of HALL v. WHITAKER, 7 Ired. 353, is a direct and complete authority against the defendant's objection, that the plaintiff was not a creditor of Whicker at the time when he was fraudulently removed. There is a slight difference in the facts, but none in the principle, between that case and the present. Where a note is discounted at Bank, the proceeds in money become the property of the person for whose accommodation the discount was made, and he has a right to apply it, as he may think proper. Whether with it, he pays off a judgment, obtained against him as surety, or an unpaid note in bank, to which he is surety; whether he makes the payment in discharge of the judgment or the note, by a check on the bank, or by drawing out the money and paying it over, with his own hands, must be immaterial. In either case, he has, with his own money, paid the debt of his principal, and he thereby becomes, immediately, the creditor of such principal.
The other errors assigned in the bill of exceptions are very properly abandoned in the argument here. But a motion is made to arrest the judgment, upon the ground that the declaration is in debt, instead of trespass on the case, as required by the Statute, 1 Rev. Stat. ch. 50, sec. 9. If the objection to the form of the pleading would have been good, at common law, the defect is remedied, by the comprehensive terms of our act "concerning the amendment of process, pleading and other proceedings at law." 1 Rev. Stat. ch. 3, sec. 5. But we cannot discover any fatal error in the declaration. It commences and concludes, properly, as in trespass on the case, 2 Chit. Plead. 596, and the apparent resemblance it has in any part, to a declaration in debt, is rendered necessary by the Statute, which enacts, that the plaintiff shall recover "his debt." It was not only proper, therefore, but essential, that he should state, what his debt was.
It might have been more technically appropriate to have inserted the words "damages amounting to," so as to make the declaration read, "by reason of the premises, and by "force of the Statute, in such case made and provided, the "said John King became liable to pay, to the said plaintiff "damages amounting to the sum of $1161 56-100, being "the said debt" c., but the omission of those words does not alter the meaning, and we think the declaration is sufficient, without them. But if we be wrong in this, it is clear, that the error alluded to is one of slight "mispleading" or "insufficient pleading," which, after verdict, is cured by our statute of amendments.
The judgment is affirmed.