Davenport v. Leary

• Decision Date: 31 October 1886
• Citation: 95 N.C. 203
• Parties: DAVENPORT & MORRIS v. W. J. LEARY, JR., Admr., et als.
• Court: North Carolina Supreme Court

95 N.C. 203

DAVENPORT & MORRIS

v.W. J. LEARY, JR., Admr., et als.

Supreme Court of North Carolina.

October Term, 1886.

OPINION TEXT STARTS HERE

CIVIL ACTION, heard upon a case agreed, by Gudger, Judge, at Spring Term, 1886, of PERQUIMANS Superior Court.

The facts are as follows:

1. F. W. Bond died intestate in September, 1885, and administration was granted upon his estate, by the proper Court, to Wm. J. Leary, Jr., who is now acting as such. His estate is hopelessly insolvent. During the whole of the year 1884, said Bond was a resident of Chowan county.

2. At the date of the judgments named herein, and up to his death, Bond owned an interest in real estate in Perquimans county, which has been, since his death, duly sold, and the proceeds of sale after paying all prior liens, is under the control of Wm. J. Leary, Jr., administrator, for such of the judgment creditors herein named as the Court may adjudge entitled thereto.

3. Davenport & Morris claim by virtue of certain judgments obtained by them before a justice of the peace, aggregating four hundred dollars, and interest, and which were duly docketed in Perquimans county, August 20th, 1884.

4. Chas. Watkins & Co. claim by virtue of a judgment confessed by said Bond, in Chowan Superior Court, August 18th, 1884, in their favor, for three hundred and ten dollars and three cents, a transcript of which was docketed in Perquimans county, August 19th, 1884; copies of the affidavit on which this judgment was based, and the account filed with the same, are set out below.

5. Rawlins, Whitehurst & Co. claim the fund by virtue of a judgment confessed by Bond, in their favor, August 18th, 1884, for seven hundred and ninety-eight dollars and eighty-eight cents, in Chowan Superior Court, a transcript of which was docketed in Perquimans county, August 19th, 1884; copies of the affidavit on which this judgment was based, the note and statement of account, are also set out below.

6. The affidavit, statement of account, original note, and judgment of the Clerk in case of Rawlins, Whitehurst & Co., were folded together on August 18th, 1884, by the Clerk, and endorsed on the back of the package, after giving the name of the cause, “Judgment confessed before Clerk,” and the affidavit and statement of judgment in case of Watkins & Co. were also folded and endorsed in same way on the back, and on the same day.

Across the face of the above statement was written August 18th, 1884, “““Judgment confessed, August 18th, 1884.

WM. R. SKINNER, Clerk.”

The affidavit on which the judgment of Rawlins, Whitehurst & Co. was confessed, was as follows:

“ Whereas, F. W. Bond is indebted to the firm of Rawlins, Whitehurst & Co., of the city of Norfolk, State of Virginia, in the sum of four hundred and thirteen dollars and forty cents, due by note dated July 5th, 1883, due September 6, 1883, and by open account, three hundred and eighty-five dollars and forty cents, the whole amount being up to this date, including interest, seven hundred and ninety-eight dollars and eighty-eight cents. Whereas, the said Bond, the defendant, at the instance of the plaintiffs to secure by way of judgment the said sum of $798.88, the said Bond hereby confesses judgment therefor, and makes oath that the said debt is bona fide, and that he justly owes the same, and under oath directs the Clerk of Chowan Superior Court to enter the same of record in his Court.”

The note and account were as follows in the judgment of Rawlins, Whitehurst & Co.:

NORFOLK, VA., July 5, 1883.

$390.10.

Sixty days after date, I promise to pay to the order of Rawlins, Whitehurst & Co., three hundred and ninety dollars and ten cents, at the Home Savings Bank of Norfolk, Va., without defalcation, for value received; and we, maker and endorser, do hereby waive the benefit of our homestead exemption as to this debt.

+------------------------------------+
                ¦(Signed).¦F. W. BOND, Edenton, N. C.¦
                +------------------------------------+
                

No. 26,047, due September 6.

Mr. F. W. BOND,

Bought of Rawlins, Whitehurst & Co.

+---------------------------------------+
                ¦1883.                          ¦       ¦
                +-------------------------------+-------¦
                ¦Jan. 31, 20,730 pounds of Ice. ¦$ 31 10¦
                +-------------------------------+-------¦
                ¦Feb. 12, 20,850 pounds of Ice. ¦31 28  ¦
                +-------------------------------+-------¦
                ¦Feb. 20, 181,400 pounds of Ice.¦272 10 ¦
                +---------------------------------------+
                

1884
                Feb. 29, 31,865 pounds of Ice.  55 62
                Feb. 13, 10,260 pounds of Ice.  17 89
                Feb. 16, 10,750 pounds of Ice.  18 81
                March 8, 121,980 pounds of Ice. 182 47
                March 8, two

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