30 N.C. 179 | N.C. | 1847
This is an action of debt on a bond given by Cordon (180) and the other defendants as his sureties, for his guardianship of the relator. The only breach assigned is the nonpayment of the sum of $1,092, a balance due from the guardian. Pleas, conditions performed and satisfaction. The facts were agreed and the jury gave a verdict subject to the opinion of the court upon the facts, with an agreement that the verdict should ultimately be entered according to the opinion of the court. *134
The case is as follows: In August, 1842, after the ward came of age, he and the guardian came to a settlement of the account between them, and Cordon was found in arrear in the sum of $2,228 for money of the ward that had come to his hands. In satisfaction thereof he assigned to Jordan notes of third persons to the amount of $1,136 and executed his own single bill under seal for $1,092, payable one day after date to Jordan, who accepted the same in satisfaction of the balance, and executed a receipt in full to Cordon, but not under seal. At the same time Jordan received from Cordon his negroes and other specific chattels belonging to him. Cordon was then the owner of large estates and was generally thought to be perfectly solvent, though it was known that he was a good deal in debt. He made some payments on his bond, reducing the sum due on it to $892, when Cordon, in 1844, failed and made an assignment of his property, and this suit was brought.
The court was of opinion that as Jordan had taken Cordon's bond in satisfaction of his debt, he could not recover in this suit, and directed the verdict to be entered for the defendants. From a judgment accordingly the relator appealed. One is at some loss to conjecture why this suit should have been brought. The relator has a plain remedy against Cordon on his note, and if he were to recover against the sureties there could be little hesitation to relieve them in equity upon such dealings between their principal and his ward. However, that question is not before us now. But upon the question of law our opinion concurs substantially with that of his Honor.
The pleas are not drawn out, but according to a loose practice in which gentlemen of the bar indulge themselves there is a memorandum of "conditions performed and accord and satisfaction." It is, therefore, understood that proper pleas of those kinds are to be inserted in the record. It is contended for the relator that he was entitled to the verdict and judgment, because his receipt, not being under seal, is not an acquittance or release of the bond now sued on, and because one bond is not a satisfaction of another. Those rules are admitted; but they do not, we think, apply here. If this receipt had been an acquittance under seal it could not have been pleaded as a release of this bond. It does not purport to be such; and, indeed, the ward, not being the obligee in the bond, could not release it. It *135
purports to be an acquittance of the demand of the ward against his late guardian on the guardian account. Now, suppose it had been founded on actual payment in money, or to be in form a release of the balance of the account, pleas of payment or release of this bond would not be sustained thereby, considering this as an action of debt by the State and without connecting the relator with it. Yet no one can suppose that, after such payment or release, a suit would lie on the guardian bond in the name of the State, to recover, as damages to the relator for the breach of the condition, the very debt which he had received or released. So, likewise, in respect to the other objection, that one does not merge in another, it is plain that it does not touch this question, for the guardian bond is not a bond to the ward, and his demand against the guardian does not (182) accrue on it, but upon the receipt by the guardian of the ward's money. If, then, the ward were to sue for this debt in his own name it would be in assumpsit for money had and received, or upon an account stated, or in equity for an account; and, undoubtedly, in either of those actions it might be insisted that the single contract was merged in the higher security of the bond, and in equity the fair settlement would bar a decree for another account. Those defenses are not to be annulled by allowing the ward, instead of suing in his own name, to institute an action of debt on the bond in the name of the State, and, by technical refinements in pleading, exclude them. The actions on these official bonds are given to "any person injured or grieved," and, as was said in S. v. Lightfoot,
PER CURIAM. Judgment affirmed.
Cited: Cabe v. Jameson,
(184)