We are of opinion, that the Defendant ought not to be compelled to pay interest on his bonds, and that the rule for a new trial should be made absolute/ ' '
Child v. Devereux, 5 N.C. 398, 1 Mur. 398 (1810)
July 1810
·
Supreme Court of North Carolina
5 N.C. 398, 1 Mur. 398
James Child, assignee, v. John Devereux.
j- From Orange. J
A debtor who is ready to pay his debt when it becomes due, is excused from paying inljgrest thereon, if the creditor conceals his place of residence and the debtor knows not where to apx>ly to make payment.
A, gave his note to 33, who, before it became due, was arrested and confined in jail; immediately after his confinement in Hillsborough jail, he published a notice to his debtors, “ that their notes were negotiated to persons living out of the State; but if any wished to make payment, by writing to him at Hillsborough, he would cause their notes to be placed in the hands of a person in Newbern, at a certain time; but if payment were not then made, the notes would be returned.” The note of A. was not due at tile time appointed for B’s debtors to make payment in Jiewbern; and before it becam^ due,
B. was discharged from jail, and left the State secretly His place of residence was unknown, and in writing to his friends, he would often not date his letters from any particular place. A. made enquiry for him, alleging that B. held his note, which he wished to discharge: he had funds ready to pay the note, but could not ascertain where it was. Several years after the note became due, B. assig-ned it to C, who gave notice of the assignment to A. A. tendered to C. the principal debt.
C. refused to accept it, unless he would also pay the interest. C. sued A. who pleaded a “tender and refusal,” and the Court were of opinion that the tender was good, and that A. was not bound to pay interest upon his note.
This was an action on the case, brought on three several promissory notes made payable to Willson Blount, and signed by the Defendant, as security for John Has-lin. Each note was for the sum of two thousand dollars, and was dated the 25th February, 1799. The first was made payable on the 25th February, 1803 : the second on the 25th February, 1804 ; and the third on the 25th February, 1805. The Defendant pleaded a tender and refusal, and the only question in the case was, Whether the Plaintiff was entitled to recover interest upon the money ? It appeared in evidence, that in the month of December, 1801, Willson Blount,, the payee of the notes, *399was arrested upon a capias ad satisfaciendum, and confined in prison at Hillsborough, in Orange county, and that he remained there, either in close jail or within the prison bounds, until the 99th December, 1803, when he left Hillsborough, and expressed a wish to a friend to travel into Virginia by the most secret routes, of which he got directions. His imprisonment was a matter of great notoriety, but during the continuance of it, he was seen by few persons. On the 16th January, 1802, he published in “ The Newbern Gazette,” a notice dated at Hillsborough on the 21st December, 1801, to the following effect, 4‘ That the notes of all persons who stood indebted to him, were negotiated to persons living out of the State $ but to accommodate those who wished to make payment of their debts, he informed them, that if they would write to him at Hillsborough to that effect, he would cause their notes to be presented for payment at Newbern, in the month* of April then next ensuing; but after that time their notes would be returned.” The notes on which this suit was brought, were not assigned at the date of this advertisement, nor for some time after they became due. On the 8th day of June, 1805, John C. Vandenhewel, of New-York, received two sets of bills of exchange, drawn by Catharine H. Haslin, the executrix of the last vvill of John Haslin, (who had died some time before,) in favor of himself, on merchants in London, for four hundred and fifty pounds sterling each, payable sixty days after sight ¿ which bills were duly accepted and paid. These bills were drawn for the express purpose of paying two of the notes in question, and Mr. Vanden-hewel retained the money for this purpose until the 23d .February, 1808, when it was drawn out of his hands by the Defendant. In October, 1805, and at other times afterwards, the Defendant expressed to Mr. Vandenhewel great anxiety to learn where the notes were, that he might pay them ; and in the years 1804 and 1805, the same anxiety was expressed to Mr. Vandenhewel by Oa-*400tharine H. Haslin, the executrix. In the year 1804, the Defendant enquired of Frederick Blount, a relative of Willson Blount, if he knew where Willson Blount was ? -ln(] was told that he did not know with certainty, but he had understood that he was in Virginia: Defendant told him that Willson Blount had his notes, which he wished to discharge, and that the money was lodged in New-York for that purpose. On the 18th December, 1807", a tender of the principal of said notes was made in New-. hern to Mr. Durkin, the then assignee, when the Defendant told Mr. Durkin he would.not pay the interest, as the money had been ready ever since the notes became due, but he could not ascertain in whose possession they were, Willson Blount being absent, and keeping his place of residence concealed. It also appeared in evi - dence, that after Willson Blount went to Virginia, he wrote letters to Mr. Hogg, of this State, one of which letters was dated at Suffolk, and others at no particular place, he apj earing desirous of concealing his place of residence: and before he left Hillsborough, he told Mr. Hogg, there was a large debt for which a writ had been suedout against him, but he had eluded the vigilance of the officer until the writ became returnable.; and before an alias writ could be sued out, he would be out of the State. It was also proved, that the Defendant bad always been able to meet his engagements, and was noted for his punctuality in discharging them.
The Jury having found the whole interest against the Defendant, a rule for a new trial was obtained, and the case was sent to this Court for the opinion of the Judges upon the question, Whether the Defendant ought to pay interest; and if so, to what amount ?