47 N.C. 3 | N.C. | 1854
The plaintiff declared on an open account, and the following special case was submitted by agreement of counsel for the judgment of the Court: "The defendant, at the commencement of this suit, and yet is the administrator of Isaac Casey, deceased, and had in his hands, as such, assets of his intestate's individual property, to an amount larger than the plaintiff's demand. The intestate, at the time of his death, was one of the firm of Casey Davis, which firm was, at the time of Casey's death, and still is, indebted to the defendant, who is the cashier of the Farmers' Bank, on bills of exchange, payable to him as cashier, and over due to an amount greater than the amount of assets that has come to his hands and for the satisfaction of which he claims to hold these assets under the pleas of `retainer and debts of higher dignity,' and it is agreed that if the Court should be of opinion that the defendant is entitled to retain the assets, for the debts above mentioned, he should give judgment for the defendant, otherwise for the plaintiff to the amount of the debt sued for."
And upon consideration of the case, his Honor being of opinion with the defendant, gave judgment accordingly, and the plaintiff appealed to this Court. The objection, that the defendant cannot retain because the debt was due from his intestate to him as "cashier of the Farmers' Bank," is clearly untenable. He is in law the creditor, and any suit to be brought for the debt, must be *4 in his individual name and it matters not, in a court of law, for whose benefit he is to hold the money when collected. Horah v. Long, 4 Dev. Bat. Rep. 274. The only difficulty is in the question, whether the defendant can retain the proceeds of the separate assets of his intestate for a partnership debt as against the plaintiffs who are separate creditors of the intestate? But that difficulty is rather apparent than real. If Casey had been living, the defendant could undoubtedly have sued him alone under the provisions of the 89th sec. of the 31st ch. of the Revised Statutes, (See Greer v. Fletcher, 1 Ire. 417,) and upon obtaining judgment might have had his property sold under an execution. So upon his death, if any other person than the defendant had taken out letters of administration upon his estate, the defendant might have sued him and enforced the collection of the debt out of the assets in his hands. But as he administered upon the debtor's estate himself, he could not sue, and for that reason the law concedes to him the right of retainer. The right to sue another person is clearly given by the 90th sec. of the Statute referred to, (see Smith v. Fagan, 2 Dev. Rep. 298,) and the principle of retainer follows as a necessary consequence when the creditor becomes himself the administrator. If the plaintiff has any rights against the defendant, they certainly do not exist in a court of law.
Judgment affirmed.
PER CURIAM.
