Tubbs v. Williams.

The plaintiff in the said execution proved her said debt regularly before the Commissioner in Bankruptcy for the County of Pasquotank, and received the dividends declared from the assignee and endorsed the same as credits on her said claim. The plaintiff in the said judgment afterwards issued her scieri facias against the defendant, Williams, as the executor of William D. Tubbs, on her said judgment, returnable to Fall Term, 1846, at which Term of the Superior Court of Pasquotank, her judgment was revived for the amount then due on the same, against the defendant, as the executor of W. D. Tubbs. Execution issued on the said judgment, returnable to Spring Term, 1847, of Pasquotank Superior Court, and, by virtue of which, the sheriff of Pasquotank County levied on the negroes in the hands of the defendant, as the executor of W. D. Tubbs, and which were the same given in the will of the said Tubbs to the petitioners. The negroes so levied upon were subsequently sold under a venditioni exponas, returnable to Fall Term, 1847, of the Superior Court of Pasquotank, issued on said judgment. As will appear by the report of W. W. Griffin, the sum of $1,556 71, assets of said W. D. Tubbs, which came to the hands of the defendant, Williams, as executor of said Tubbs, which amount arose from the legacies and were part of the legacies bequeathed to the petitioners, was applied to the satisfaction of the balance due on said judgment and execution in favor of the said Lovey 9. Pool, to and upon which debt, Tubbs is admitted to have been surety only.

Now if upon the foregoing case agreed, his Honor shall be of opinion, that the defendant, H. N. Williams, notwithstanding his certificate and discharge as a bankrupt, is liable to account to and with the petitioners for the said sum of $1,556 71, applied as aforesaid to the payment of the balance due as aforesaid on the execution aforesaid, then judgment is to be rendered in favor of the

Tubbs v. Williams.

petitioners for $1776 94, with interest from the 23rd October, 1848. But should his Honor be of a different opinion, and hold that the defendant is only liable for the balance reported by said W. W. Griffin, to-wit, $220 23, then the report is to be confirmed and judgment accordingly.

His Honor being of opinion that the defendant, Williams, was only liable for the said balance of 220 23, as found and reported by said Griffin, gave judgment and decreed accordingly, from which judgment and decree, the plaintiff prayed for and obtained an appeal to the Supreme Court.

No counsel for the plaintiff in this Court.

Heath, for the defendant, submitted the following argument:

"How can Williams be held liable to Tubbs' legatees for this amount? Williams was discharged from all his debts, and of course from this; Tubbs, then, though he signed originally as surety, was, by Williams' discharge as a Bankrupt, left the sole Debtor, as much so, as if Williams had never been liable for the debt. Suppose Tubbs were living, and had paid the debt, after Williams was discharged as a bankrupt; as Williams was discharged from the debt, Tubbs could maintain no action. against him, for the reason that Williams' discharge would bar it. And as Tubbs, if alive, could maintain no action to enforce the claim, for the reason, that the claim has no legal existence, so neither can Tubb's legatees, maintain the present proceeding to recover the amount of Lovey Pool's execution; for, though sueing as legatees, they are still sueing on Tubb's right.

PEARSON, J. It is provided by the bankrupt act, that, under a commission against the principal, a surety may prove the debt, and the certificate is a discharge of the principal, from the cause of action or claim, as well of

Twidy v. Saunderson.

the surety, as of the creditor; so that if Tubbs, the surety, was living, and had been forced to pay the debt, he could not recover from the defendant. This, it seems to us, is decisive of the case. The petitioners apply for their legacies: the defendant insists, that a large part of the assets, which would otherwise have been applicable to their legacies, has been taken by a judgment creditor. The petitioners reply, that was a debt upon which our testator was your surety. The defendant rejoins, "true! but I was discharged as a bankrupt, your testator had no cause of action against me, and you, who stand in his place, can have no higher claim."

We concur with his Honor.

The decree below must be affirmed.

PER CURIAM.

Judgment affirmed.

JONATHAN TWIDY vs. JESSE SAUNDERSON.

A. hired a negro from B. and gave his sealed note as follows, "On the 1st day of January, 1848, I promise to pay to B. one hundred and thirty dollars, the slave is hired on the same terms as other slaves, for the hire of the boy Evartson." Held, that this writing only referred to the price of a the negro, and was not a memorial of any other terms of the agreement, and that, as to these latter, parol evidence was admissible. And in such a case, in order to recover damages for a breach of the agreements, not mentioned in the note, an action on the case and not an action of covenant is the proper remedy.

Appeal from the Superior Court of Law of Tyrrell County, at the Fall Term, 1848, his Honor Judge BAILEY presiding.

Twidy v. Saunderson.

This was an action on the case, in which the plaintiff proved by parol evidence, that, on the 1st of January, 1847, he hired to the defendant a negro man for the year 1847, that the agreement was made in the County of Tyrrel, and by the terms of the agreement, the defendant was not to risk the slave on water or to carry him out of the County of Tyrrell; that, at the same time and place, many other slaves were hired by other persons and the same terms were openly and expressly agreed upon by the respective parties.

The plaintiff further proved, that, during the year 1847, the defendant hired the slave to one Spruil, who carried him to the County of Martin, where the negro was killed.

This action was commenced on the 8th of January, 1848, and the plaintiff declared in case, for permitting the negro to be carried out of the county, and also in

trover.

The defendant offered in evidence a note under seal, which he had executed to the plaintiff, for the hire of the negro. The note was in these words. "on the 1st day of January, 1848, I promise to pay to Jonathan Twidy, one hundred and thirty dollars, the slave is hired on the same terms as other slaves, for the hire of boy Evartson"

The defendant objected to the parol evidence offered by the plaintiff, upon the ground that it was not admissible to explain the written contract under seal. His Honor admitted the evidence.

The defendant also contended that the action was misconceived and should have been covenant and not case. His Honor held, that the action could be maintained, and instructed the jury, that, if it was a part of the contract, that the slave should not be carried out of the county, and he nevertheless was carried out of the county and killed during the time of hiring, the plaintiff was entitled to re cover and the measure of the damage was the value of

Twidy v. Saunderson.

the slave. The jury found for the plaintiff and assessed the damage at $832 56.

Biggs, for the plaintiff.

Heath and E. W. Jones, for the defendant.

PEARSON, J. The case, as made up, presents but two exceptions on the part of the defendant: one as to the admissibility of parol evidence; the other, as to the form of action; and this Court is necessarily confined to these two questions, for it is to be taken for granted, that the case was made up in reference to these two questions alone.

When parties reduce their agreement to writing, it is a rule of evidence, that the parol testimony is not admissible to contradict, add to, or explain it; for although there be no law requiring the agreement to be in writing, still the written memorial is the surest evidence.

The rule is not applicable to the case under consideration, for the agreement was not reduced to writing. The note is not a memorial of the entire agreement, but is simply a part execution on the side of the defendant by giving a security for the price, the plaintiff having exe cuted his part of the agreement by giving possession of the negro, leaving the terms of the agreement, as to the length of time for which the ncgro was hired, the clothing to be furnished, and other stipulations open for parol proof.

Admit that the note, as far as it purports to contain the agreement, excludes parol testimony; it contains the agreement as to the price, to wit: "one hundred and thirty dollars for the hire of boy Evartson," and therefore parol evidence would be inadmissible to show, that a greater sum was to be given. It contains a general expression as to the terms, to-wit: "The slave is hired on the same terms as other slaves." These words must either be re