Jarratt v. Martin

• Decision Date: 31 January 1874
• Citation: 70 N.C. 459
• Parties: ISAAC JARRATT and others, Adm'rs. v. H. P. MARTIN.
• Court: North Carolina Supreme Court

70 N.C. 459

ISAAC JARRATT and others, Adm'rs.

v.H. P. MARTIN.

Supreme Court of North Carolina.

January Term, 1874.

The surety on a bond is entitled to all the legal and equitable defences to which his principal is entitled, which attached to or was connected with the debt, evidenced by such bond. And it is competent for such surety to introduce any evidence tending to set up such defence; for instance, to prove a set off or counter-claim contracted in reference to the debt sued upon.

CIVIL ACTION, to recover the amount of a bond, tried before Cloud, J., at Spring Term, 1873, of the Superior Court of YADKIN county.

The action was originally commenced against T. S. Martin and the present defendant, who was his surety upon the following bond, the basis of the present suit:

“On the first day of November next, we promise to pay R. C. Puryear four thousand dollars, it being the purchase money for a tract of land, and has nothing to do with any other dealing between us, for value received. Witness our hands and seals, Sept. 28th, 1852.” And signed

T. S. MARTIN,

H. P. MARTIN.

T. S. Martin, the principal in the foregoing bond, having filed his petition and been adjudged a bankrupt a short time before the commencement of this action, at a subsepuent term it was discontinued as to him upon the suggestion of his bankruptcy and continued against the defendant, H. P. Martin, alone. The execution of the bond was not denied.

On the trial, the defendant offered to prove by T. S. Martin, that at the time the bond was given, the plaintiffs' intestate, the obligor, was largely indebted to him, T. S. Martin, the principal therein, and that it was agreed between them that the indebtedness should go as a payment on the land, and the balance was to be paid by him, by lifting debts against plaintiffs' estate; and that he did lift debts by direction of said intestate to an amount larger than the bond. The plaintiffs' counsel objected to the introduction of this testimony, and his Honor excluded it.

Defendant then offered to prove by the same witness, that the bond had been fully paid off by him, and that the intestate had so acknowledged and had promised to deliver up the bond upon the first convenient opportunity. To this evidence the plaintiffs likewise objected, and the Court ruled it out.

Defendant offered to prove by another witness, several notes given by the intestate to the said T. S. Martin, some prior and some subsequent in date to the bond sued on, and which was set forth in the answer as payments and counter-claims. This evidence was also objected to by plaintiffs, on the ground that these notes had been surrendered by said T. S. Martin in his schedule, and had passed to his assignee in bankruptcy. Defendant offered to prove by...