Cherry v. Savage, 64 N.C. 103 (1870)

Jan. 1870 · Supreme Court of North Carolina

64 N.C. 103

WILLIAM R. CHERRY, Adm’r v. L. L. SAVAGE.

In an action upon a bond in the ustial form, given at an administrator’s sale in January 1865, proof that at the sale proclamation was made that “Confederate notes will not be taken,” rebuts the presumption made by the Ordinance of 1865 as to the currency’in which notes, &e., are solvable; and the fact that on the same occasion, before sale-made, the administrator, upon further enquiry by the bystanders, added “ that if he had to collect the notes he would collect gold and silver, that if he could pay the notes over to the hems, &c., they could make any arrangement they were willing to, as to payment,” is immaterial.

(Laws v. Rycroft, ante, 100, cited, distinguished and approved.)

Debt, tried before Jones, J., at January Special Term 1870, of Edgecombe Court.

The plaintiff declared' upon a bond for-money, in the usual form, payable to himself as administrator, &c. at six months, by the defendant, and executed January 18th 1885, and proved that it was given at a sale made by him, and that before the sale, proclamation was made of the terms, by reading aloud a written statement (amongst other things) that “Confederate notes will not be taken”; also that after these terms were read, and before the sale, as they did not state what sort of money tvoulcl ~be received, the plaintiff added, “ that if he had to collect the notes he would collect gold and silver; that if he could pay the notes over to the heirs, &c., they could make any arrangement with them they were willing to, in regard to their payment.”

The defendant excepted to the admission of other testimony as to the terms, than what was written.

Yercliet for the plaintiff, for the face of the note, &c. Rule, &c., Judgment, and Appeal by the defendant.

Bragg for appellant.

Battle Sc Sons, contra.

Dick, J.

It appears from the evidence introduced by the plaintiff, that the note sued on was given on the 18th clay of January 1865, for property purchased at an administrator’s sale. Before the sale was made, it was distinctly announced by the auctioneer, as one of the terms of sale, that Confederate money would not be received in payment, from the purchasers. This evidence fully rebutted the presumption created by the Ordinance, of Oct. 18th 1865, and the Acts of 1866, chapters 38 and 39.

In the case of Laws, Adm'r. v. Rycroft, at this term, the collateral contract was not sufficiently definite to prevent the operation of said statutes.

There is no error.

Per Curiam. Judgment affirmed.