Martin v. Williams, 12 N.C. 386, 1 Dev. 386 (1828)

June 1828 · Supreme Court of North Carolina

12 N.C. 386, 1 Dev. 386

Benjamin H. Martin v. John W. Williams ad'mr. of Alexander Latham,

From Beaufort.

An agent, who has given a receipt for a judgment and collected the amount of it, may be subjected in Assumpsit for money had and re*, ceived, without producing the judgment on the trial.

The Plaintiff declared in Assumpsit for money had and received, and on the trial, produced an accountable receipt given to hint by the Defendant’s intestate, for a Justice’s judgment against one Bowen. He. then proved by one Judkins, that the amount of ihe judgment liad been collected from Buwen, and paid to the Defendant’s intestate. The witness was ask' d what had become of the judgment, and answered that it had been delivered to Bowen. The Plaintiff’s Counsel admitted that he could not produce (he judgment, and that no attempt had been made to enable him todo so; whereupon bis honor Judge Strange, ruled that Judkins’ testimony could not. go to the Jury in the absence of the judgment, unless that ah-sence was accounted for, and directed a iiousuit, from which the Plaintiff appealed.

Hogg, for the Plaintiff.

Gaston, contra.

Per Curiam

The substantial justice of the case is, that the Defendant’s intestate received the money claimed by the Plaintiff, and received it to his use; it was also received on account of the judgment against Bowen, a fact which could not be more satisfactorily established by the production of the judgment.’ But we cannot be ignorant of a very prevailing custom in the country, of surrendering magistrates’judgments to the debtor, upon their being paid ; and in most cases it would be impossible ever to obtain possession of them again. Besides the Defendant ought not to insist upon the. production of it, after he had acknowledged the receipt of it, and must consequently have put it into Judkins’ possession.

Let the judgment below be reversed.