Waugh & Isbell v. Chaffin, 14 N.C. 101, 3 Dev. 101 (1831)

June 1831 · Supreme Court of North Carolina

14 N.C. 101, 3 Dev. 101

Waugh & Isbell v. Nathan Chaffin.

A'judgment entered up as-follows : “ Former judgments and retainer admitted; judgment confessed for, &c. to be satisfied when the money is collected, or in notes before hand,” is a judgment quando.

.Debt, upon three-judgments entered up against the defendant) as the administrator of William W. Chaffin, The writ demanded 282 -10, which the-defendant owe» and detains, See.”

Upon nil debet pleaded, a verdict was taken for the plaintiff, for g 125 75 principal, besides damages — subject to the opinion of the presiding judge upon the following facts:

The plaintiffs commenced actions upon three several bonds against the defendant, as the adminisra-for of William W, Chaffin, returnable to November session, 1822, of-Surry County Court, to which the defendant pleaded non est factum, payment anda set-off, retainer, former judgments, debts of higher dignity, and fully administered. At the next August sessions, the following entry was made in the cause standing first on the docket: “ JVbn. est factum withdrawn, former judg- “ nients and retainer admitted. Judgment confessed for (i &c. to be satisfied when the money is collected, or in “ notes before hand if the plaintiffs choose — plaintiffs to C( pay all costs.”

The same entry was made in the other causes) by a reference to that above given, as to the pleas which were admitted ; but there was no entry or memorandum, as to the time when the-judgments were to be satisfied, and no option given the plaintiffs of receiving payment in notes before they were due.

Afterwards, viz. at November sessions, 1826,. three ■Writs of scire facias issued upon those judgments, in which, after reciting the judgment,, and the fact that it had become dormant, the writ directed the defendant “ to appear, &c. and show cause, if any he hath, why “ the said judgment should not be revi ved, and execution “ issue thereon.” To these writs, the defendant pleaded mil tiel record, and the same pleas to protect the assets, which he had entered to the original suit. In the County Court, the following entry was made, ‘‘judgment revived according to scire facias and upon an appeal to the Superior Court, this judgment was affirmed. There was no evidence offered of assets in the hands of the defendants, liable to the plaintiffs? action.

not be^staiMd against an ad-suipecUiim pír-sonálly, unless ed iridíasete.31'

His Honor Judge Man gum, at'Surry, on the last fall circuit, upon these facts, set aside the verdict, and entered a nonsuit, and the plaintiff appealed.

Gaston, for the plaintiff,

The Attorney-General and Badger, for the defendant.

Henderson," Chief-Justice,

after stating the case, as above, proceeded : On these judgments, declaring on them in the debet and detinet, the present áction is brought, to charge the defendant personally, without any evidence' of assets. And this depends on the question, whether they are absolute or quando judgments. The whole entry must he taken together, and if so, it is impossible to make them absolute judgments, or to reconcile the admission of former judgments and retainer, with an absolute judgment. I say nothing of the entry “ to be paid when the money is collected,” for that entry is made in the first judgment only,' and in the other two, the entries in the first are. referred to. But I lay it out of the case. As I said before, the admission of the pleas renders it impossible for them to be understood as absolute judgments. If they were not so at first, the revival by sci.fa. did not make them so. The revival, only autho-execution on them, as their terms originally imported. It simply gave an execution. It is therefore impossible, without evidence of assets afterwards com-mg to hand, more than sufficient to satisfy the defend-afft’s retainer, and the other judgments referred to in the pleas, to sustain the action. Even with such' evidence, I think that the action cannot be sustained, until the defendant is fixed with assets in this cause, either by sci. fa. suggesting them, or by some other mode. I speak from recollection only, or rather upon principle, as I have not examined the authorities. But most certainly it cannot he done, as said above, without evidence to charge the defendant with additional assets; in other words, with assets subject to these judgments. As to the objection taken by the defendant, there is nothing in it. The ruléis not, thatindebt the plaintiffmust recover tlie sum demanded, or not at all; but that the proofs must agree with Ms allegations. The plaintiff may recover less. ■

cover ^ ksTthan he demands, but agree1 witiThis . Iíi debt, the

Per C uni am. — Jubgment aeeirmbb.