McRae v. . Malloy

Supreme Court of North Carolina

McRae v. . Malloy

87 N.C. 196

CourtSupreme Court of North Carolina

DecidedOctober 5, 1882

StatusPublished

Cited by5 cases

This text of 87 N.C. 196 (McRae v. . Malloy) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McRae v. . Malloy, 87 N.C. 196 (N.C. 1882).

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Opinion

Ashe, J.

We do not think in a case like this a demand is necessary to give the defendant a right of action, or interest in his claim.

The plaintiff’s intestate had received money which belonged to the defendant, and the court had ordered him to pay it to the defendant, which it had the right to do. The order of the court made the plaintiff’s intestate debtor to the defendant, and holding that relation to him, he like any other debtor was bound to seek the defendant and pay him. And it is a general rule established in this state, that when *199 ever one person has the money of another and knows what sum he ought to pay, he must pay interest on the same. Harrison v. Bowie, 4 Jones Eq., 261; State v. Blount, 1 Hay. 4; Hunt v. Jucks, Ib. 173.

In this case it is true the decree of the court had not ascertained with exactness the amount due by the plaintiff’s intestate to the defendant, but it had settled the amount with such certainty that it required only a simple computation to ascertain the exact sum due, and id cerium est quod cerium, reddi potest.

The referees might very properly have given the defendant interest on his counter-claim from the date of the decree; for the plaintiff being the creditor of the defendant and having money in his hands due to him, in legal in-tendment it was a payment. Norment v. Brown, 77 N. C., 363; McDowell v. Tate, 1 Dev., 249. And there is no doubt from the circumstances of the case, the original parties so considered it; otherwise we would be at a loss to conjecture why the defendant allowed his dividend of the proceeds of the sale of the land to remain for some four years in the hands of the plaintiff’s intestate, and never set up any claim to it until this action was brought.

If it/had been allowed as a payment, it would have satisfied the defendant’s bond pro tanto, and of course would have stopped the interest on so much of it. And it would have amounted to about the same as if they had allowed the defendant interest from the date of the decree.

The referees, however, gave him interest on his eounter-claim only after thirty days from the decree, instead of from that date, which was erroneous, but as no exception was taken by the defendant to this ruling of the referees upon this point, their report must stand and the plaintiff’s exception must be overruled.

There is no error. The judgment of the court below is affirmed.

No error. Affirmed.

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Ashe, J.

We do not think in a case like this a demand is necessary to give the defendant a right of action, or interest in his claim.

The plaintiff’s intestate had received money which belonged to the defendant, and the court had ordered him to pay it to the defendant, which it had the right to do. The order of the court made the plaintiff’s intestate debtor to the defendant, and holding that relation to him, he like any other debtor was bound to seek the defendant and pay him. And it is a general rule established in this state, that when *199 ever one person has the money of another and knows what sum he ought to pay, he must pay interest on the same. Harrison v. Bowie, 4 Jones Eq., 261; State v. Blount, 1 Hay. 4; Hunt v. Jucks, Ib. 173.

In this case it is true the decree of the court had not ascertained with exactness the amount due by the plaintiff’s intestate to the defendant, but it had settled the amount with such certainty that it required only a simple computation to ascertain the exact sum due, and id cerium est quod cerium, reddi potest.

The referees might very properly have given the defendant interest on his counter-claim from the date of the decree; for the plaintiff being the creditor of the defendant and having money in his hands due to him, in legal in-tendment it was a payment. Norment v. Brown, 77 N. C., 363; McDowell v. Tate, 1 Dev., 249. And there is no doubt from the circumstances of the case, the original parties so considered it; otherwise we would be at a loss to conjecture why the defendant allowed his dividend of the proceeds of the sale of the land to remain for some four years in the hands of the plaintiff’s intestate, and never set up any claim to it until this action was brought.

If it/had been allowed as a payment, it would have satisfied the defendant’s bond pro tanto, and of course would have stopped the interest on so much of it. And it would have amounted to about the same as if they had allowed the defendant interest from the date of the decree.

The referees, however, gave him interest on his eounter-claim only after thirty days from the decree, instead of from that date, which was erroneous, but as no exception was taken by the defendant to this ruling of the referees upon this point, their report must stand and the plaintiff’s exception must be overruled.

There is no error. The judgment of the court below is affirmed.

No error. Affirmed.

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Bluebook (online)

87 N.C. 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcrae-v-malloy-nc-1882.

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