Iredell County NcArchives Court.....Craige & Hall, Payson & Amanda Hall V. 1873
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Connie Ardrey n/a November 10, 2011, 9:22 pm

Source: N C Reports
Written: 1873

E. Payson Hall and wife, Amanda, v. Burton Craige and J. W. Hall

The addition of the word "executors," in a judgment confessed by a defendant, 
is mere surplusage, and does not prevent his being charged, de bonis 
propritis, with the amount.

Civil Action, tried before Cloud, J., at Rowan Superior Court, Fall Term, 1872.

The complaint was against the defendants as individuals, and alleged that at 
June Term 1860, of the Superior Court of Law for Iredell County, the 
defendants, as executors of one Solomon Hall, confessed a judgment in favor of 
the feme plaintiff, then Amanda Neely for $13,000, and offered in evidence the 
transcript of the record of said judgment. To the introduction of the 
transcript, the defendants objected. His Honor overruled the objection and the 
transcript was read.

The defendants then offered to show the circumstances under which the judgment 
was confessed, and that it was done voluntarily and without any consideration, 
which being objected to by the plaintiffs was excluded by the Court. They then 
proposed to prove that early in the war they proposed to pay off the 
plaintiff, in good notes due their testator, and that the plaintiffs declined 
to receive them, but told defendants if they would proceed to collect the 
notes, they would take the money. The defendants collected the notes in 
Confederate money, which they tendered to the plaintiffs, who refused to take 
it. This evidence being also objected to by plaintiffs was excluded by the 
Court. The defendants offered to show that the money collected on the notes, 
and which the plaintiffs refused to receive, was kept by them separate from 
other moneys, and that they had the same now for the plaintiffs, and subject 
to their disposal. This evidence, upon objection by the plaintiff, was 
likewise excluded by the Court.

His Honor was asked by the defendants to charge the jury, that there was a 
variance between the allegations of the plaintiffs' complaint, in which it was 
charged that the defendants as individuals owed the plaintiffs, and the 
evidence produced on the trial, to wit: a judgment against them in antre 
droit, which instructions his Honor declined to give.

Verdict and judgment for the plaintiffs. Appeal by defendants.

Smith & Strong, and Blackmer & McCorkle for appellants
Bailey, contra

NC Supreme Court Justice Settle, J. - This case was before us at January Term, 
1871, and is reported in 65 N.C. Rep. 51.

Although it involved at that time only a question of practice under the Code 
of Civil Procedure, we took occasion, in order to save further litigation, to 
express an opinion upon the point which is now presented for decision.

We listened with attention to the suggestions of the able counsel, who argued 
the case for the defendants at this term, but we are unable to see any reason 
for changing our opinion.

All of the points made by the defendants in the record before us are based 
upon the assumption, that they are liable only de bonis testatoris; but as 
that foundation must fall, all of the superstructure must fall with it; the 
principal and incidents go together.

The fact that the defendants are styled "executors," &c., in the judgment in 
the Superior Court of Iredell County, can avail them nothing. A train of 
decision fixes the liability de bonis propriis, and the addition of the 
word "executors," in said judgment is mere surplusage.

The defendant's counsel attacked the form of the judgment in this case, 
because it does not distinguish the principle from the sum allowed as interest 
as directed by the Revised Code, chap. 31, sec. 90.

To this it was replied by Mr. Bailey that it appeared from the record that 
there had been several payments, which had discharged all of the interest due, 
and also a portion of the principal, leaving only principal money due, and 
therefore the judgment was properly rendered.

At all events it is evident that the point was not intended to be presented by 
the record. Kesler v. Ha.., 64 N. C. Rep. 60; Hailey v. Wheeler 4 Jones 159.

The judgment of the Superior Court is affirmed
This will be certified
Per Curiam
Judgment affirmed

Additional Comments:
In the NC Supreme Court January Term 1873

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