Shaw v. McFarlane
| Decision Date | 31 December 1840 |
| Citation | 1 Ired. 216,23 N.C. 216 |
| Parties | EDWARD SHAW v. WILLIAM McFARLANE. |
| Court | North Carolina Supreme Court |
OPINION TEXT STARTS HERE
If two persons are bound by a bond or a judgment for the payment of a sum of money, the one is liable at law to the creditor in the same manner and to the same extent as the other, although as between themselves they stand as principal and security.
An agreement for indulgence to the principal does not at law amount to satisfaction of the debt; and nothing in pais can discharge an obligation or a judgment but performance or satisfaction.
This suit was commenced by a warrant to recover the balance of a former judgment before a justice, obtained by the plaintiff against Elisha B. Norfleet and the present defendant as his security. An appeal was taken from the judgment of the justice on the warrant to the County Court of Hertford, and thence to the Superior Court, where the case was tried before PEARSON, Judge, at March Term, 1839. A verdict and judgment were rendered for the plaintiff, and the defendant appealed to this Court. The facts of the case are set forth in the opinion of the Court delivered by the Chief Justice.
No counsel appeared in this Court for the plaintiff.
A. Moore for the defendant .
In 1831, one Norfleet and the present defendant executed a bond to the plaintiff for $10L 50 cents, on which a warrant was sued out against both of the obligors, on the 27th of May, 1837. On the 1st of June following, Norfleet, by deed, (to which the plaintiff and one Valentine were also parties,) conveyed to Valentine personal property, of value sufficient to discharge the debt and costs, upon trust that if Norfleet should not pay the debt before the 15th of October following, Valentine should at any time thereafter sell the property and discharge the debt. A payment of $50 having been before made, the plaintiff, on the 30th of June, 1837, took judgment for the balance due on the bond and costs. After the execution of the deed, Norfleet retained possession of the property, using and disposing of it as his own. In October, he requested the plaintiff to have a sale made under the deed, and raise his debt, as he said the defendant was uneasy. The plaintiff said he would, but nothing was done until after the death of Norfleet, insolvent, in November, 1837, when Valentine sold such effects as Norfleet had not consumed or sold, and applied the proceeds thereof towards the satisfaction of the plaintiff. There was still a balance due on the judgment, for which the present suit was brought. Besides other pleas, the defendant pleaded specially, that he was the surety for Norfleet in the bond and judgment...
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... ... Brandt on Suretyship & Guaranty, 3d Ed., sec ... 2; Rouse v. Wooten, 140 N.C. 557, 53 S.E. 430, 111 ... Am.St.Rep. 875, 6 Ann.Cas. 280; Shaw v. McFarlane, ... 23 N.C. 216; Gatewood v. Burns, 99 N.C. 357, 6 S.E ... 635; Pritchard v. Mitchell, 139 N.C. 54, 55, 51 S.E ... 783. He is in ... ...
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... ... Dec. 283; Guaranty Co. v ... Pressed Brick Co., 191 U.S. 416, 24 S.Ct. 142, 48 L.Ed. 242; ... Doll v. Crume, 41 Neb. 655, 59 N.W. 806; Shaw v. McFarlane, ... 23 N.C. 216; Baglin v. Title Guaranty & Surety Co. (C ... C.) 166 F. 356. The reason an extension of time granted a ... ...
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Rouse v. Wooten
...of a person whose liability is primary, for he is, by the terms of the instrument, absolutely required to pay the same. In Shaw v. McFarlane, 23 N.C. 216, it is held that two persons are bound by a bond or judgment for the payment of a sum of money, the one is liable to the creditor in the ......
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C. A. Burton Machinery Co. v. National Surety Co.
...283; Guaranty Co. v. Pressed Brick Co., 191 U. S. 416, 24 Sup. Ct. 142, 48 L. Ed. 242; Doll v. Crume, 41 Neb. 655, 59 N. W. 806; Shaw v. McFarlane, 23 N. C. 216; Baglin v. Title Guaranty & Surety Co. (C. C.) 166 Fed. 356. The reason an extension of time granted a principal without the conse......