Woodman v. Mooring, 14 N.C. 237, 3 Dev. 237 (1831)

Dec. 1831 · Supreme Court of North Carolina

14 N.C. 237, 3 Dev. 237

George W. Woodman v. John Mooring.

After a bond has been discharged by the principal debtor, it-cannot be set up again to the prejudice of a surety, by a subsequent agreement between the principal and the obligor.-

Debt,, upon a single bond, executed by one Pinkit,' with the defendant as surety.-

Plea — payment, on which it was tried before S waín, Judge, at Martin, on the last circuit,

The defendant proved, that the plaintiff came to the house of Pinkit, and purchased from him a negro for $550, from which was to he deducted the amount of,the bond, and the residuo to be applied to other debts due the plaintiff — that the hoy was not then delivered, and «that the sale was to ho completed by the delivery of the slave at the residence of the plaintiff, the ensuing week — after which the boy was seen in his possession. To rebut this testimony, the plaintiff offered to prove by his clerk, that a year after the time when the sale was alleged by the defendant to have .been made, he and Pinkit made another contract, by which a debt due him by Pinkit, incurred after that time, was to ho paid from tbcpu reliase money and the residue applied to the bond in suit.

His Honor refused to receive this testimony, thinking it to be irrelevant, and the defendant had a verdict; whereupon the plaintiff appealed.

The attorney General and Gaston, for the plaintiff.

Hogg, contra.

Hah,, Judge.

.The question presented in this caséis, whether the judge erred in rejecting the testimony of the plaintiff’s witness who lived with him as a clerk. I think that evidence was properly rejected ; because admitting the facts to be as the plaintiff proposed proving them by that witness, he was not entitled to recover against the present defendant. I do not speak of the effect or relevancy of the evidence in case Pinkit was sued. When the plaintiff purchased the negro boy, or when he was delivered perhaps, according to the testimony the bond was paid in pursuance of the express contract between Pinkit and the plaintiff, and the defendant was discharged from his suretyship; and no contract which the plaintiff and Pinkit could afterwards enter into, could revive it, and make the bond again obligatory upon the defendant. It not only appears thatthebond was discharged by the sale of the negro to the plaintiff, but a balance of the purchase money remained, and was to be applied to Pinkil’s credit in some other way. If the rejected evidence amounts to any thing, it shows an unfair combination between the plaintiff and Pinkit against the defendant. It certainly discloses no merits on the plaintiff’s side to entitle him to recover.

Per, Curiam. — Judgment aeeirmed.