State ex rel. Ransom v. Thomas

33 N.C. 251

• Court: Supreme Court of North Carolina
• Decided: August 15, 1850
• Status: Published

Opinion

Pearson, J.

This case was before the Court at its last term and is reported 10 Ire. 1G5. It was then held, that no judgment could be rendered on the special verdict, because it did not appear, that any of the claims had been collected, so as to make a debt or demand “ to which the payments could be applied;” so the question as to the ap= plication of money, which was intended to be presented, did not arise.

But it was intimated, that if the deputy had collected any thing on the note of Brittain and Johnson, the payments ought, first, to be applied to that demand, because it is the rule in this country, to apply payments to the debt, for which the security is the most precarious, when no application is made by the party who pays. Moss v. Adams, 4 Ire. Eq. 42, was cited in support of the position. Upon the second trial, it was proven, that the deputy had collected the whole of the note of Brittain & Johnson ; not, it is true, in money, but in horses and cattle, which he received as money, and gave up to them their note, and the Judge in the Court below held, that this was such a collection of the claim, as to make it a debt or demand, to which payments could be applied, and that, in the absence of any proof, that any collections had been made, upon any of the other claims and paid over to the relators, it was proper to apply the payments to the ex-tinguishment of the claim upon the bond of Brittain & Johnson, although it was not proven, that the deputy had sold the horses, cattle, &c, and realized the money from such sales. We see no error in this opinion; it fully accords with the intimation given in the case, when it was last before us, which was in accordance with the law, as held in Moss v. Adams.

Per Curiam. Judgment affirmed.