Nixon v. Long, 33 N.C. 428, 11 Ired. 428 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 428, 11 Ired. 428

JOHN NIXON vv. WILLIAM P. LONG.

Where one has a cause of action against another, accruing after a demand made, the suing out of a writ for that cause of action, though the writ was in assumpsit, when it should have been in covcnaut, is a demand in the strongest form.

The case of Lynn v MlcLelland, 4 Dev & Bat 459, cited and approved.

Appeal from the Superior Court of Law of Perquimans County, at the Fail Term 1850, his Honor Judge Caldwell presiding.

This is an action of covenant, upon a guaranty under seal, dated September 12, 1845, oí a note executed by one Halsey for two hundred and fifty dollars, payable to the defendant. The note was executed in July 1845, and fell due on the 1st of January 1840. On the 13th of April 1S44, Halsey executed a deed in trust to Badha n, conveying the greater part of his property to secure debts due to sundry persons, amounting to five thousand dollars or thereabouts; and. on the 11th of April 1840, the said Halsey executed another deed in trust to oneNorcom and o.ui Benbury, embracing all the balance of his property of every description and the interest thereon, including fourteen negroes, not conveyed in the deed of IS 14, to secure debts due to sundry persons, amounting to a much larger sum, than those secured in the deed of 1844. It was proved on the trial, that Halsey was reputed to be entirely insolvent, from and after the execution of the deed of 1846,and that, on the sale of all his property in December 184S, by the said trustees, it fell short of paying the debts secured in the sum of six thousand dollars. It also appeared, that in March 1S49, the plaintiff made a demand on Halsey to pay the said note; that, in May 1849, the plaintiff, by his counsel, sued out a writ in as-sumpsit on the said covenant, returnable to May Term of Perquimans County Court, (the second Monday of May) and returned “executed that his counsel moved the Court to change the said writ from case to covenant, which motion was refused, and the plaintiff submitted to a non*suit. Whereupon the present suit was brought, returnable to August Term 1849 of Perquimans County Court.

The defendant offered to prove by parol, that it was a condition of the said guaranty, that suit should be brought by the plaintiff on the note in question. The evidence was rejected by the Court.

The Court charged, that the plaintiff was bound to use the same degree of diligence in collecting the note from Halsey, that a prudent man would use in collecting a debt of his own ; that, if he had failed to do so, then the defendant was entitled to their verdict The Court further charged, that the suing out of the writ in May 1849, though not in proper form, was such a demand on the defendant, as w'ould satisfy the law. To this latter part of the charge the defendant excepted. After the jury had been out sometime, they returned into Court, and asked, if the said note was not secured in the deed of trust of April 1846 ; to which the Court answered, that the deed embraced a debt of two hundred and fifty dollars, the balance due on two notes, and there was no other evidence, that it embraced the note of two hundred and fifty dollars, now the subject of litigation To this answer of the Court to the interrogatory of the jury the defendant excepts. The defendant also excepts to the opinion of the Court, in rejecting the parol evidence.

The jury returned a verdict for the plaintiff, and from the judgment thereon the defendant appealed,

A. Moore, for the plaintiff.

Heath and Jordan, for the defendant.

Pearson, J.

The defendant offered to prove by parol, that it was a condition of the covenant, that Nixon was to bring suit on the note. The Court rejected the evidence, and to this the defendant excepts. There is no error. We can see no reason for making an exception, in this case, to the rule, that a written instrument cannot be added to, varied, or explained by parol proof.

The Court charged, that, suing out the writ in May 1849, although it was not in proper form (being in assumpsit,) was a sufficient demand. To this the defendant excepts. There is no error. The writ, issued in May 1849, was for the same cause of action, and amounted to full notice and was in fact a demand in the strongest form. Linn v. McLelland, 4 Dev. & Bat. 459.

We can see no force in the exception to the answer made by the Court to the interrogatory of the jury ; it was simply, a recital of the evidence on that point. These are the only points presented by the case.

Per Curiam. Judgment affirmed.