Opinion
June Term, 1838.
Words of Description of Payee — Discontinuance.
1. A note payable to A. B., "cashier, or order," and "negotiable and payable" at a particular bank, is payable to A. B., individually, the word "cashier' being only descriptive of the person; and the expiration of the charter of the bank at which the note is "negotiable and payable" will not at law affect his right to recover on it.
2. If, after a judgment against him, the defendant comes into court at a subsequent term and procures the judgment to be set aside and pleads to the action, and a verdict is subsequently rendered against him, it is no discontinuance of the action of which he can take advantage; and if it were a discontinuance it would be cured by the verdict under our act of amendment. 1 Rev. Stat., ch. 3, sec. 5.
THIS was an action of debt upon a bond, which was made payable to "William H. Horah, Cashier, or order," and "negotiable and payable at the Branch of the State Bank at Salisbury." The action was commenced in the county court of Mecklenburg, and at November Term, 1834, of said court, the parties by their attorneys appeared in open court, when the following entry was made, viz: "Judgment." At May Term, 1835, the cause was, by order of court, reinstated on the trial docket, and the defendants entered their pleas and at a subsequent term it was tried and a verdict and judgment rendered in favor of the plaintiff, upon which the defendants appealed to the Superior Court, where, on the last circuit, it was tried before his Honor, Judge Nash, when the plaintiff having obtained a verdict the defendants moved in arrest of judgment, and assigned the following reasons: First, because the charter of the State Bank had expired. Secondly, because it appeared on the face of record, certified from the County to the Superior Court of Mecklenburg that there had been a discontinuance of said suit. The reasons in arrest were overruled by the Court, and judgment being rendered for the plaintiff, the defendants appealed.
Boyden and A. M. Burton for the defendants.
D. F. Caldwell for the plaintiff.
Neither of the exceptions in arrest of judgment is good. (417) The expiration of the charter of the Bank, whereof the plaintiff was cashier at the time of the execution of the note on which he brought this action, is a circumstance which in no way affects his right to recover the debt demanded. It was due to him personally. The word "cashier" was but descriptive of the individual to whom the note was made payable. The legal interest of the debt was in the plaintiff. The action was properly brought by him and the judgment rendered for him in his natural capacity. Whether he was a trustee for the Bank, or any other person, is an inquiry with which a court of law has no concern.
There has been no discontinuance of the action, whereof the defendants can take advantage. A judgment had been rendered for the plaintiff, which put the defendants out of court. But they came into court, had the judgment set aside, and, at the same term pleaded over to the action. Subsequently to this voluntary appearance on their part the cause has been regularly continued in court until the final judgment. But if there had been a discontinuance, it is cured by the verdict under the statute, 32 Henry VIII, and our act of amendment. 1 Rev. Stat., ch. 3, sec. 5. The judgment is affirmed with costs.
PER CURIAM. Judgment affirmed.
Cited: Whitehead v. Griffin, 47 N.C. 4; Fox v. Horah, 36 N.C. 359.
(418)