State Ex Rel . Wells v. . Sluder .

72 N.C. 435 | N.C. | 1875

This is a case agreed, for the purpose of obtaining a proper construction of the opinion of this Court, rendered at January Term, 1874, in a case between the same parties, and reported in 70 N.C. Rep. 55.

The only question before us now is whether the defendants are to be charged with the value of the Confederate money received on the Patty debt, at the date of its receipt, or with the full amount of the Patty note?

When the case was first before us this question was not discussed, indeed it was not even suggested on the argument, and in rendering the opinion the Court was looking only to the general liability of the defendants, without adverting to the measure or extent of their liability. While the defendant, Sluder, in yielding to the pressure brought to bear upon him, incurred a certain degree of responsibility, still we cannot say that he acted in bad faith or has been guilty of fraud.

And in the absence of fraud or bad faith this Court has by a long train of decisions, commencing with those cited by the defendants counsel, Shippv. Hettrick, 63 N.C. 329, and Cummings v. Mebane, 63 N.C. Rep. 315, established the position too firmly to be now shaken, that persons acting in a fiduciary character, and receiving Confederate money are to be charged only with its value at the date of the receipt, unless it was received so late in the war as to amount to notice that the cestui que trust would not receive it. Here the money was received on the 11th of May, 1863, and this Court after declaring that no inflexible rule can be laid down by which the liability of persons receiving Confederate money can be tested, but that each case must depend upon the circumstances attending it, says "probably it may aid investigation to say that as a general rule, an officer might have received Confederate notes up to 1863, and ought not to have received them after 1863 upon anti-war debts, and that 1863 is debatable ground.Emmerson v. Mallett, Phil. Eq. 234.

In this case whether we consider the time of receiving the money, or the circumstances attending it, we concur with his Honor in the Superior Court that the defendant should be held responsible only for the value of the Confederate money he received from Patty.

Judgment affirmed. Let this be certified, c.

PER CURIAM. Judgment affirmed.