The complaint was against the defendants as individuals, and alleged that at June Term, 1860, of IREDELL, the defendants, as executors of one Solomon Hall, confessed a judgment in favor of the feme plaintiff, then Amanda Neely, for $13,000, and offered in evidence the transcript of the record of said judgment. To the introduction of the transcript, the defendants objected. His Honor overruled the objection and the transcript was read.
The defendant then offered to show the circumstance under which the judgment was confessed, and that it was done voluntarily and without any consideration, which being objected to by the plaintiffs was excluded by the Court. They then proposed to prove that early in the war they proposed to pay off the plaintiffs, in good notes due their testator, and that the plaintiffs declined to receive them, but told *Page 215 defendants if they would proceed to collect the notes they would take the money. The defendants collected the notes in Confederate (306) money, which they tendered to the plaintiffs, who refused to take it. This evidence being also objected to by plaintiffs, was excluded by the court. The defendants offered to show that the money collected on the notes, and which the plaintiffs refused to receive, was kept by them separate from other moneys, and that they had the same now for the plaintiffs, and subjected to their disposal. The evidence, upon objection by the plaintiff, was excluded by the Court.
His Honor was asked by the defendants to charge the jury, that there was variance between the allegations of the plaintiff's complaint, in which it was charged that the defendants as individuals owed the plaintiffs, and the evidence produced on the trial, to wit: a judgment against them in antedroit, which instructions his Honor declined to give.
Verdict and judgment for plaintiffs. Appeal by defendants. This case was before us at January Term, 1871, and is reported in65 N.C. 51.
Although it involved at that time only a question of practice under the Code of Civil Process, we took occasion, in order to save further litigation, to express an opinion upon the point which is now presented for decision.
We listened with attention to the suggestions of the able counsel, who argued the case for the defendants at this term, but we are unable to see any reason for changing our opinion.
All of the points made by the defendants in the record before us are based upon the assumption, that they are liable only de bonis.testator is; but as that foundation must fall, all of the 307) super-structure must fall with it; the principal and incidents go together.
The fact that the defendants are styled "executors," etc., in the judgment of the Superior Court of Iredell Country, can avail them nothing. A train of decision fixes their liability de bonis propriis, and the addition of the word "executors," in said judgment is mere surplusage.
The defendants' counsel attacked the form of the judgment in this case, because it does not distinguish the principal from the sum allowed as interest as directed by the Revised Code, chap. 31 sec. 91.
To this it was replied by Mr. Bailey that it appeared from the record that there had been several payments, which had discharged all *Page 216 of the interest due, and also a portion of the principal, leaving only principal money due, and therefore the judgment was properly rendered.
At all events it is evident that the point was not intended to be presented by the record. Kesler v. Hall, 64 N.C. 60; Hailey v. Wheeler,49 N.C. 159.
PER CURIAM. No Error.
Cited: McLean v. McLean, 84 N.C. 371.