Howerton v. . Sprague

64 N.C. 451

• Court: Supreme Court of North Carolina
• Decided: June 5, 1870
• Status: Published

Opinion

Peabson, 0. J.

If personal property sufficient to satisfy an execution be levied on, the debt is thereby satisfied, unless the property is destroyed without default, or unless the property is delivered back to the defendant in the execution. Consequently the debt here was not satisfied by the levy.

The plaintiff insists that the creditor without his consent entered into a binding contract with the principal debtor to give further time, the effect of which was to discharge him, the plaintiff, from further liability as surety.

It is a well settled principle of equity as between creditor and surety, when the creditor by a binding contract and not a mere nudum pactum, gives further time to the principal debtor, the surety is “ discharged by matter in pais,” as it is termed in the books. Of this equitable discharge the Justice of the Peace had no jurisdiction; the equity could only be enforced by the Superior Court. It would have been otherwise if the debt had been satisfied. His Honor, therefore properly took jurisdiction, and heard the motion to dissolve the injunction, upon the complaint and answer, and argument of counsel. But he fell into error in rejecting the additional affidavits offered by the plaintiff, by not adverting to the fact that on hearing the motion, the answer as well as well as the complaint was to be treated as an affidavit. Had the defendant put his motion on the insufficiency o the matter set out in' the complaint, the plaintiff would not have been allowed to offer additional affidavits ; but when he used the answer as an affidavit, it opened the door and let in additional affidavits: C. C. P. §196; Clark v. Clark, ante 150.

There is error. This will be certified.

Per Curiam. Beversed.