18 N.C. 563 | N.C. | 1836
2. In the present case, the deed in trust, to amount to a release, should have been executed by the plaintiffs.
3. A release cannot be of a debt which does not exist; for a man cannot release what he has not. A bond creates an obligation of itself, and the law will not look back for the foundation upon which it was given; in this respect it differs from a parol contract.
4. At all events, the deed of trust cannot operate to prevent the bank from reducing the debt to a judgment.
Iredell, in reply. — The object of the agreement was to receive a new note every year, which is inconsistent with the judgment's being obtained. In this case, the bond itself shows that the original debt was the foundation upon which the bond was given. We are of the opinion, that evidence offered by the defendant, and rejected by the Court, could not have sustained the plea of "accord and satisfaction." This plea always sets out what the defendant gave in satisfaction; it alleges the delivery, and it expressly avers that the goods, or things done, were accepted in satisfaction and discharge. Drake v. Mitchell, 3 East's Rep. 256-258; 1 Saund. on Plead. Evid. 24. The replication to the plea may either deny the delivery of the chattel in satisfaction, or, protesting against that fact, may deny the acceptance. Steph. Pl. 236; 1 Saund. Pl. Ev. 24. In this case, if the pleadings were drawn out in form, the plea would aver a delivery of the twelve hundred and fifty dollars, and the defendant's bond for the renewal, and that the plaintiff then and there accepted and received of and from the defendant, the said sum of twelve hundred and fifty dollars and bond, in full satisfaction and discharge of the said sum of five thousand seven hundred and twenty-six dollars. *566 The replication would deny the acceptance, and tender an issue; which the defendant would be obliged to join on that very point; and this we take to be done in the present case. To maintain the plea, and support the defendant's side of the issue, it is not enough to show that he has always been ready to pay the money and renew the bond, or even a tender and refusal; but an actual acceptance thereof by the plaintiff must be proved.Lamb's Case, 9 Rep. 60. Allen v. Harris, 1 Lord. Raym. 122. Beatson v.Schank, 3 East's Rep. 233. The defendant did not pretend, that he could prove by the evidence rejected, that the twelve hundred and fifty dollars and bond tendered for renewal, had been accepted by the bank in satisfaction of the bond now sued on. The evidence did not profess to go to that extent, and was therefore immaterial to the issue, and the Court properly rejected it.
As to the second plea: The parol agreement entered into by the parties on the 10th day of June, 1829, cannot, by any rule of law, be received in evidence to support the plea of "accord, c.," to and concerning a bond executed on the 10th of June, 1834; which bond did not recite the agreement, or have any reference to it. Mease v. Mease, Cowp. Rep. 47, was an action of debt on a bond, conditioned for payment at a certain day. Plea, that it was given as an indemnity to the plaintiff against another bond, and not damnified. Demurrer. — Lord MANSFIELD: "the plea is clearly bad; let there be judgment for the plaintiff." He went on the ground, that no parol evidence can abate or extend a bond or deed. In Davy v. Prendergast, 7 Eng. Com. Law Reps. 63, the court said, if a parol agreement is entered into to give time, supposing it the case simply of a common bond, conditioned for payment of money at a certain day, it will not prevent the party proceeding at law immediately, whatever the consideration for the delay may be. The consideration for the agreement may induce a court of equity to direct, that the party shall not proceed to enforce his remedy at law. The case cited of Good v. Cheesman, does not aid the defendant. The case was this. The defendant being unable to meet the demands of his creditors, they had signed an agreement *567 (which was assented to by the debtor,) to accept payment by two thirds of his annual income, to be placed in the hands of a trustee of their nomination. The plaintiff, who had signed, afterwards brought assumpsit for his whole demand, (the defendant's acceptance of two bills of exchange,) and the defendant was permitted, under the plea of non assumpsit, to give this agreement in evidence. The court said, it would be unjust that the plaintiff should prejudice the other creditors, who had neglected to recover their demands, under a persuasion that none of the parties who had signed would proceed against the defendant. The new agreement was received in evidence to prevent a fraud on third persons. We have looked into Mr. Chitty's note to 3 Black. Com. 15, (which was cited,) and can discover nothing there different from what we here lay down the law to be upon this subject. The judgment must be affirmed.
PER CURIAM. Judgment affirmed.