The plaintiff alleged further that some time after this settlement was made the defendant, the Bank of New Bern, instituted a suit by scire facias to revive the judgment against him, the plaintiff, and at Spring Term, 1833, of the Superior Court obtained a judgment for $915.04, it being the balance due after allowing certain payments made on account thereof by Blackman; that whilst the suit by scire facias was pending, the president and directors commenced suit on the official bond of Blackman against him and his sureties, the defendants Rhodes and Hopton, and obtained a judgment against them for the debt due said president and directors from the plaintiff. But the plaintiff alleged that the president and directors of said bank colluding, with the other defendants, Rhodes and Hopton, forbore to collect the money from them, they being perfectly able and sufficient to pay the same, but was pressing the plaintiff therefor.
The prayer of the bill was for an injunction to restrain the defendants, the president and directors of the Bank of New Bern, from enforcing the collection of the judgment on the scire facias against the plaintiff until they had first endeavored to obtain satisfaction from Blackman and the other defendants on the judgments against them; or that, upon receiving satisfaction from the plaintiff, they might be compelled to assign to him the last-mentioned judgment.
The defendants, the president and directors of the Bank of New Bern, admitted that the plaintiff was indebted to them, and that they had instituted suit and obtained judgment for the amount due as stated. They also admitted the assignment by Snead to the plaintiff (527) of a part of a judgment which he had previously obtained against Blackman, Smith, and others. They admitted further that they had understood and believed it to be true that the plaintiff had made some arrangement with Blackman by which Blackman was to take upon himself, the payment to the defendants of their judgment against the plaintiff, and that Blackman executed a receipt to the plaintiff for the amount of their judgment as if it had been paid to him as *Page 419 sheriff. But they did not admit that the plaintiff in making this arrangement with Blackman acted fairly and in good faith, under the belief that he had a right so to do; on the contrary, they stated it as their belief that it was a cunning and dishonest contrivance between the plaintiff and Blackman to relieve the latter from the pressure of Snead's execution, and also to pay the debt of the plaintiff to the defendants, by throwing it upon Blackman and his sureties. The defendants further stated that they did not know whether the plaintiff did or did not give any receipt on account of Snead's judgment, in return for the receipt given by Blackman for the judgment against the plaintiff in favor of the defendants; but if such were the case, they submitted that this interchange of receipts could not affect them, they not being cognizant of nor assenting to it. The defendants further admitted that they had instituted a suit by scire facias to revive the judgment against the plaintiff, and had obtained a judgment in the Superior Court, on the trial of which suit it had been shown that at the time when Blackman executed the receipt to the plaintiff he had not in his hands any writ of execution authorizing him to collect the money. They also admitted that pending that suit they had obtained a judgment against Blackman and the defendants Rhodes and Hopton, his sureties on his official bond, for the amount of the same judgment. They denied all collusion with the other defendants, or that any agreement, expressed or implied, existed between them, further than that they had directed their attorney to collect the money from the plaintiff before resorting to the other defendants. They stated that this was done under a conscientious belief on their part that Rhodes and Hopton ought not to be pressed, if the money could be got out of the plaintiff; that in point of (528) interest it was immaterial to them from whom the money was received; and they submitted, upon the receipt of the amount due them, to assign either of their judgments as the Court might direct.
The answer of the other defendants, Rhodes and Hopton, corresponded in all material respects with that of the president and directors of the Bank of New Bern, only they stated further that at the time when the judgment was obtained on the official bond of Blackman they were ignorant of the fact that when Blackman gave the receipt to the plaintiff he had no execution in his hands authorizing him to receive the amount of the judgment in favor of the other defendants against the plaintiff.
To these answers the plaintiff excepted: (1) Because the defendants had not answered and set for the whether Blackman, Smith, and others, against whom Snead had obtained judgment, and which judgment was in part assigned to the plaintiff, were perfectly solvent and good and able to pay that judgment. *Page 420
2. Because they had not answered and set forth whether Rhodes and Hopton, the sureties of Blackman, against whom the president and directors of the Bank of New Bern had obtained judgment, were perfectly solvent and able to pay the judgment so recovered against them.
3. Because they had not answered and set forth whether an execution was in the hands of the coroner of Wayne County against Blackman, Smith, and others on the judgment obtained by Snead, and which had been assigned to the plaintiff.
4. Because they have not answered and set forth whether the plaintiff gave his receipt on the execution against Blackman, Smith, and others, issued on the judgment in favor of Snead, and which was assigned to the plaintiff as before mentioned.
DONNELL, J., at Wayne, on the last Spring Circuit, pro forma (529) allowed the exceptions, and the defendants appealed. The first exception to the sufficiency of the defendant's answers must be overruled, because, whether Blackman, Smith, and others were good and able to pay the judgment which Snead had obtained them (a part of which belonged to the plaintiff) was a, matter quite immaterial in this case, as it is not alleged by the plaintiff in his bill that the bank assented to any arrangement by which the judgment against the plaintiff should be satisfied out of any portion of Snead's judgment against those persons; and the sheriff had no execution in his hands at the suit of the bank against the plaintiff.
The second exception must be overruled, because, although Blackman, Rhodes, and Hopton may be able to pay the judgment which the bank obtained against them, still as no payment or satisfaction has actually been made on this judgment, the circumstance of the judgment having been obtained by the bank against the sheriff and his sureties is not, in law or equity, a satisfaction or discharge of the judgment which the bank had before obtained against the plaintiff, although the two judgments were in fact for one and the same demand. The bank had its election to make the money either out of them or the plaintiff; and the election the bank proposes to make is obviously the just and equitable one, because the sheriff's sureties were not properly chargeable.
The third exception must be overruled, for if the fact was that the corner had an execution in his hands at the instance of Snead against Blackman, Smith and others, and if at that time the plaintiff thought proper to give Blackman a receipt for his (the plaintiff's) part of Snead's judgment, under an agreement with Blackman that he would *Page 421 pay the bank that sum, on its execution against the plaintiff, if (530) it had been then in his hands as sheriff, still, as no cash was paid, such an arrangement made by the plaintiff and the sheriff, without the assent of the bank, could in no wise operate as a discharge of the plaintiff from his liability to the bank. The agreement of the sheriff could not bind the bank. Nothing but the receipt of the cash, or a levy by the sheriff, and taking property sufficient to discharge the execution out of the possession of the present plaintiff, could discharge his liability.
The fourth exception must be overruled, because the bill does not pretend to state that the bank assented to the transaction. Therefore, whether the plaintiff gave his receipt to Blackman for his part of Snead's judgment against Blackman, Smith, and others, was a thing quite immaterial to the bank. It was neither payment nor satisfaction of the execution which the bank then had against the plaintiff. But the defendants in their answer do state that they do not know whether the plaintiff gave Blackman any receipt for his part of Snead's judgment. Their omitting to say whether they were informed or believed that the plaintiff had given such a receipt, in this case, would have been useless, for the reasons before mentioned. The answers state that it was proved on the trial that Blackman did not have the execution for the bank in his hands at the time he and the plaintiff made the agreement.
We think that the order made in the Superior Court, allowing the exceptions to the sufficiency of the answer, must be reversed, and that all the exceptions must be overruled.
PER CURIAM. Decree below reversed.
Cited: S.c., 21 N.C. 328; Parker v. Jones, 58 N.C. 279.
(531)