Russ v. . Gulick

64 N.C. 301

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

Opinion

Peaesoít, C. J.

The answer of York is not ingenuous and frank, but is unsatisfactory and evasive. He admits that he advanced the money at the instance of his co-defendant High, buthe says ‘‘the money was under his control, and was not the money of HighNon constat, that he did not get the money which was under his control, through the agency of High. But be this as it may, the plaintiff has a clear equity on the matter confessed. It is admitted, that at the first, the plaintiff and High were co-sit^eties, and that the plaintiff has paid his own half of the debt, and that the assignment to York, was made with notice, and for the purpose of enabling York, by means of the legal title in the judgment, standing in the name of Gulick, whose legitimate business it was to receive the proceeds, and notto assign the judgment, to force the plaintiff to pay the other one-half of the debt.

So we have a case of combination and confederacy, to adopt means, whereby the burden of the payment of the whole debt, is to be put on one of the sureties. This contrivance is justified on the ground that, by an arrangement between the plaintiff and High, made after they had entered into the relation of co-sureties, Russ was to pay the whole debt. In other words, new matter is alleged in avoidance of the original liability of High to pay one half of the debt; but this allegation, in the stage of the case now presented, is not supported by proof, and allegation without proof is like proof without allegation — the Court cannot take notice of it.

There is error. Decretal order below reversed.

This will be certified.

Per Curiam. Order reversed.