Bynum v. . Barefoot

75 N.C. 576

• Court: Supreme Court of North Carolina
• Decided: June 5, 1876
• Status: Published

Opinion

Pearson, C. J.

When this case was heard at the last term it occurred to us to be so' strange that the Clerk, after issuing an execution, would receive the amount of the judgment in Confederate notes, which the plaintiff, being within the lines of the United States forces, could not get out of his office, and could not use, even if he got them, that we held the case over, and directed a certiorari to send up the execution.

It is in the usual form, issued 12th January, 1863, returnable the tenth Monday after the fourth Monday in September next, and is endorsed ft. fa. to Fall Term, 1863. The sheriff makes no return.

So the fact is, that Barefoot paid the Confederate notes into office in January, 1863, soon after the ft. fa. issued, whereas the ft. fa. was not returnable until Fall Term, 1863. We can only account for this haste to pay a debt upon the idea of a fraudulent certiorari, to “ spoil the Egyptians,” and extinguish a debt to parties who had taken sides with the Yankees.

1. Had the Clerk a right to receive the money in satisfaction of the judgment while an execution was in the hands of the sheriff?

At common law a debtor was obliged to seek his creditor “ wheresoever he may be within the four seas.” This doctrine bore hard on debtors, and to relieve them it is enacted by statute (Rev. Code, chap. XXXI,'sec. 127) that after the creditor reduces his debt to judgment, the debtor may pay the money to the Clerk, “ although no execution may have issued, and such payment of money shall be good and available to the party making the same.”

We construe this statute to mean that the debtor may pay the money to the Clerk before any execution issues, pr after an execution is returned, but it cannot be strained to cover a case where an execution has issued and is in the bands of the sheriff. It is not within the mischief, the debtor can make payment to the sheriff and need not seek for the creditor. If the Clerk can receive the money, the debtor may slip to the office and satisfy the judgment,, and thus cheat the sheriff out of his commissions, or else the sheriff may exact commissions when he has not collected the money.

A decision in favor of the plaintiff might have been put on the ground that the Clerk had no authority to receive the money in satisfaction of the judgment, while the execution was in the hands of the sheriff.

2. Suppose the debtor had a right to pay the money to the Clerk while an execution was in the hands of the sheriff; payment in Confederate notes was not a payment in money, as required by the statute. Pervis v. Jackson, 69 N. C. Rep., 474. A decision for the plaintiff might have heen put on this ground.

3. Suppose the defendant was authorized to pay the money to the Clerk, notwithstanding there was an execution in the hands of the sheriff, and suppose the defendant had actually paid the money to the Clerk. So that under ordinary circumstances it would have satisfied the judgment, yet as in this case there was the extraordinary circumstance that a war broke out, and all communication with the plaintiff was cut off, such payment in money would not have had the effect to extinguish the judgment unless the plaintiff had actually received the money.

. The war put an end to all agencies, whether that created by the statute, or that created by the relation of client and attorney, and the idea that a payment in Confederate money to the Clerk, pepding an execution in the hands of the sheriff, is out of the question. Fritz v. Storn, 22 Wallace, 198.

No error.

Pe¿ Curiam. Judgment affirmed.