Costner v. . Fisher

10 S.E. 526, 104 N.C. 392

Opinion

Shepherd, J.

— after stating the facts: His Honor was clearly right in holding that the account was merged in the bond. Gibson, C. J., in Jones v. Johnson, 3 Watts & Sergt., 277, says: “Extinguishment by merger.takes place between debts of different degrees, the lower being lost in the higher, and, being by act of law, it is dependent on no particular intention * * * No expression of intention would control the law which prohibits distinct securities of different degrees for the same debt, for no agreement would prevent an obligation from merging in a judgment on it, or passing in rem judicatura. Neither would . an-agreement, however explicit, prevent a promissory note from merging in a bond given for ihe same debt by the same debtor, for, to allow a debt lo be at the same time of different degrees, and recoverable by a multiplicity of inconsistent remedies, would increase litigation, unsettle distinctions* and lead to embarrassment in the limitation of actions,” &c. This high authority fully sustains the ruling of'-his Honor.

Even if there were no merger, the taking of the bond, payable at a certain time, implies an agreement to suspend his remedy on the account for that, period. 2 Dan’l Neg. Ins., 1272; Putnam v. Lewis, 8 Johns, 389; Frisbie v. Lerned, 21 Wend., 450, and other cases cited in Bank v. Bridgers, 98 N. C., 67.

Affirmed.