Witherspoon v. Carmichael

• Decision Date: 31 August 1849
• Court: North Carolina Supreme Court
• Parties: JOHN WITHERSPOON et al. v. ABNER CARMICHAEL.

6 Ired.Eq. 143

41 N.C. 143

JOHN WITHERSPOON et al.

v.ABNER CARMICHAEL.

Supreme Court of North Carolina.

August Term, 1849.

A bill, founded upon an allegation of fraud, must not merely insinuate the frand, but must charge it in positive and direct terms; otherwise the plaintiff will not be permitted to prove it, and, of course, can have no relief.

Appeal from an interlocutory order of the Court of Equity of Wilkes County, at the Spring Term 1848, his Honor Judge CALDWELL, presiding.

The bill was filed by John Witherspoon and William P. Witherspoon against Abner Carmichael, and set forth, in substance, that James W. Dula and certain other infants, by their guardian, Nelson A Strange, and other complainants of full age, filed their bill of complaint against the present plaintiff, William P. Witherspoon, in the Court of Equity for Wilkes County, and obtained a decree against him at April Term 1839 for $3544 84-100, upon which executions issued from time to time, which went into the hands of the defendant, who was then the sheriff of Wilkes County; that the plaintiff, William, made many payments on the said executions during the years 1840. 1841, and 1845, making in the whole the sum of $3823 15-100, for which he had taken receipts from the said defendant, as sheriff; that, besides these sums, the plaintiff, William, paid to the defendant, in the summer of 1841, the sum of $393 16-100 in the following manner, to wit: the said plaintiff was indebted to the Bank of the State at Raleigh, in the sum of $1015 principal, which, with interest and the costs of collecting the same, amounted to $1084 38-100, and that, for the purpose of paying the same. as well as the residue unpaid of the decree aforesaid, he had a note discounted at the Branch of the Bank of Cape Fear at Salisbury for $1500, all of the proceeds of which, except the sum of ten dollars, went into the hands of the defendant, who paid off therewith the debt due the Bank of the State, and the costs thereof, and, by express agreement, was to apply the remainder of the proceeds of the said note to the payment of the decree aforesaid, but the defendant had not done so, and had in no way accounted for the same; that the plaintiff, William, had taken a receipt from the defendant for the money paid on the bank debt, but had neglected to take one for the residue of the money, received by the defendant from the Bank at Salisbury. and the same remained in the hands of the defendant entirely unaccounted for; and that, besides this, the defendant had collected for the plaintiff, William, on a judgment against one Thomas E. Laws, the sum of about $60, which he had also failed to account for. The Bill further charged, that the defendant, in order to satisfy the residue, which, he alleged, was unpaid on the decree aforesaid, levied the execution, which he had in his hands, in the year 1845, on several slaves of the plaintiff, William, and sold two of them for the sum of $683, the said plaintiff contending at the time, that the said decree had been fully paid off; that the defendant was about to sell others of the said slaves, to prevent which, the plaintiff, William, entered into a written contract with the defendant, by which it was agreed, ‘??that Col. Anderson Mitchell should examine the papers in the case N. A. Strange Guard v. W. P. Witherspoon, the judgment, execution and receipts, and ascertain what ballance, if any, there is yet unpaid, principal, or interest, or cost,” and, if any should be found unpaid, the said plaintiff agreed to pay it without delay, and, if the decree should be ascertained to have been overpaid, then the defendant agreed to refund the overplus, both parties mutually agreeing to abide by the award of the said Mitchell. The bill then charged, that the said Mitchell examined the papers in the case referred to him, and decided, that there remained due on the said decree the sum of $361 45-100, and rendered his award accordingly; that, in making this award, the said arbitrator refused to take into consideration any payment, for which the plaintiff, William, had no written receipts, founding his refusal upon the exact terms of the written agreement, which, the bill alleged, had been artfully drawn by a son in law of the defendant; whereas the bill charged, that, at the time, when the said agreement was entered into, it was expressly mentioned and understood by the parties, that the money, received by the defendant from the Bank at Salisbury, was to be taken into the account, and the bill alleged, that the said matter was brought distinctly to the notice of the said arbitrator, but he refused to allow it, whether because he was of opinion, that he was precluded from doing so by the express terms of the written agreement, or that the plaintiff, William, might have his remedy upon the official bond of the defendant, as sheriff, for the year when the money was received by him; but the bill alleged, that the plaintiff, William, could have no remedy at law on the said sheriff's bond for the year 1840, because he was one of the sureties for that year, and that the said arbitrator was mistaken in both the points decided by him. The bill charged further, that the defendant instituted a suit against the plaintiff, John, on the said award, in the Superior Court of Wilkes County, and, at the fall term 1846, recovered a judgment against him for $125, for which he was about to take out execution. The bill then charged, that the defendant was entirely insolvent, and that, if he were permitted to enforce the collection of the said judgment from the...