Note. — As to the first point, vide Quinton v. Courtney, ante 40.—Upon the other point, see Comyns on Contracts, 1 vol. 27.
Clary v. Allison, 2 N.C. 128, 1 Hayw. 128 (1794)
Sept. 1794
·
North Carolina Superior Court
2 N.C. 128, 1 Hayw. 128
Daniel Clary v. Allison.
Whoever has the possession of money, has the property of it. Money deposited by one person to be paid to another upon a contingency, cannot be recovered by that other, but must be sued for by tire-person who makes the deposit.
*129Tlic case was, a writ was taken out against returnable tó the County Court of Rowan, and he vtjlh arrested upon it, and in order to procure-. Yarborough to breóme his bail, he deposited in !^dr-ui|&. a very censi-do rah !4$Wn of money, and bmk^mttHKtYritiug from Yurborimrh, in which he prornhsedWrokYMppoiiov to Gov, Ittouiiti'mMU the event of FarhoI8jy itkvisilis o m e n t- from Isis sureijship for Mlison. Tiii$&>■'¡ti*fgfktk 11 o w I e d g e d the mumsJ*io have been receivedi§fVi/Hsdii'v.': The, Plain - tiffin the suit was nonsuited fortsvaut of tf tier la>-at ion in the Chunty Court, and immediately commenced ids suit «gain by «ay of original attachment, in which Yarbo-rough was summoned as a garnishee ; and upon his oath of garnishment stated the foregoing facts. 'Phis latter action was brought to trial in the County Court, and appealed from this Court : and now the cause coming on. it wa» objected for Mlison, that by the tenure of the writing subscribed by Yarborough, -the money in bis bands on the. event that had taken place, belonged to Gov* Blount; and that Yarborough was Hable to pay to him, not to Mlison ; and should it now he condemned as Mli-son's. Governor Blount, being no party to this suit, nor bound by any decision made upon it, might sue Yarbo-rough and recover notwithstanding. E contra, for the Plaintiff,‘it was argued that whoe-ver is in the possession of money, is the proprietor, and especially if he claim to he the proprietor for bis own purposes — that as to the writing making it to be Governor Blount's, there was nothing in it — that writing is a promise to Mlison, upon a consideration proceeding from him (namely his depositing the money) to pay to Governor Blount; and if the promise, in* broken, Hu* action for the bread) must be brought by Mlison — l!$at bvf>ra the passing of the act of (‡. Jinn, sfdt. 3 and 4 c. 9, and our own act of Assem - bly 1762, c. 9. the Plaintiff could not declare upon a promissory note 5 and these acts only enable the holder to declare upon such notes as are rendered negotiable by them, not upon notes not negotiable; as a note at this day for the delivery of a specific article of tobacco, pork, &e. and no notes are negotiable by these acts, but such as are independent, of any contingency ; but here at the time of making this note, it depended upon a contingency whether the money mentioned in it would ever become pay able to Governor Blount, and if it is not a negotiable *130Uote at the time of its making, it can never after become so by any ex post facto circumstance. Et per curiam, Jtllison was possessed of this money and used it as his own, and therefore he must be taken to have been the proprietor — whoever is in possession of money and undertakes to dispose of it, is in law the proprietor. Et per Judge Wiihams, this very point came in controversy at the last term of Hillsborough court in the case of Quinton v. Courtney, or Qmntoch v. Courtney, and was directed as we are now deciding this question. Et per curiam, perhaps it would be very difficult for Governor Blount to support an action upon the promise contained in this writing, for want of being able to shew a consideration. — So the Plaintiff recovered.