(after stating the case.) There are no issues shown in the record to have been submitted to the jury as required by The Code, the neglect to draw up which, so as to give meaning to the verdict, would induce us, after such repeated warning given and disregarded, to refuse to entertain the appeal and remand the case, but that the verdict was dispensed with and the case never reached the jury.
The defendants’ counsel insists that the appeal should be dismissed, because the nonsuit was needlessly suffered when the cause ought to have proceeded to its termination. But the practice has long prevailed, that when the proofs are all in and the Judge intimates an opinion that, under the old practice the plaintiff cannot recover, or under the new fails to establish the issues necessary to his having judgment, he *592may suffer a nonsuit, and, by appeal, have the correctness of the ruling reviewed. We see no reason why this course may not be taken when the Judge announces, as in this case he substantially does, that if the jury believe the facts to be as deposed to by the witnesses, he will instruct them to find the issue as to the payment in favor of the defendant.
In a late case—Davis v. Ely, 100 N. C., 283—the Court did not wait until the evidence was concluded, but in denying the motion to dismiss the action, added, that the plaintiff, if he proved his averments, could not have the specific relief asked — the contract reformed, and, as reformed, specifically enforced — but he would be entitled, upon the facts set out in the complaint, if proved, to a judgment rescinding the contract. Thereupon, the nonsuit was suffered.
This course of procedure did not meet our approval, for the reason that the opinion was purely hypothetical and contingent, open to a retraction when the opportune time arrived for an authoritative ruling; and, moreover, the verdict might dispose of the case if rendered against the plaintiff upon the evidence. We took occasion then to say what we now repeat, that a convenient practice is, to reserve a ruling upon the motion to nonsuit, with consent of parties, “ and let the case proceed to verdict, so that if it was against the plaintiff, the reserved point would be put out of the way, and if for him, the ruling upon it adverse to the defendant, when erroneous, could be corrected, and, in either case, the cause terminated.” Kirby v. Mills, 78 N. C., 124.
The rule will operate quite as favorably in cases like the present.
Upon the point, however, brought up by the plaintiff’s appeal, we concur in the ruling indicated by the Judge. He does not say that admissions of payment are not open to disproof as when merely such they are, but evidence of payment to be considered and passed on by the jury, but he means to say that when Waddell, the debtor, gave the check, *593drawn in his favor by Morgan to the plaintiff R. N Tiddy, who deposited it to his credit as stated, the transaction, nothing to the contrary appearing, must be understood to have been intended to he, and to be, a payment. The fact that Morgan gave the check under Tiddy’s promise to cover does not change the nature and effect of the act as between him and Waddell, whose interest was thereby acquired by the former. That the act of delivering the check and its conversion into a money credit by the deposit are in legal effect a payment, is sustained in principle by Brisendine v. Martin, 1 Ired., 286, and Hall v. Whitaker, 7 Ired., 353, and other cases. The appellees’ contention, which aims to give to the transaction the effect of an assignment instead of payment, so as to preserve the remedy against the other debtor, finds no-support in the facts.
To prevent a satisfaction when a surety pays the money to the creditor to preserve the security for the benefit of the surety so paying, it must be assigned to a trustee, and in no other way can it be kept alive. Hodges v. Armstrong, 3 Dev., 253; Briley v. Sugg, 1 D. &. B. Eq., 366. Nor when intended as a payment can it fail to have such effect because less than the sum demanded, when accepted as such, under the act of 1874 and 1875. The Code, § 574.
There is no error, and the judgment is affirmed.