Deaver v. Keith.

Court. In that court, the motion was renewed before his Honor Judge Buxton, and being refused, the defendant again appealed.

Phillips & Battle for the appellant.
Merrimon, contra.

BATTLE, J. We are clearly of opinion that his Honor, in the court below, erred in refusing to dismiss the attachment. The reason given by him for refusal to dismiss shows that he was misled by considering the case as coming within the provision of the 52d section of the 31st chapter of the Revised Code alone, without reference to the 14th section of the attachment law contained in the 7th chapter of the Code.

The whole Revised Code was enacted as one statute consisting of various chapters, some of which have intimate connections with others and must be construed with reference to them. Hence the section of the chapter first above mentioned, which authorizes the issuing of a judicial attachment in certain cases, must be taken to mean such cases only as are not absolutely prohibited by the 14th section of the attachment law. The object of the last named section was the protection of non-residents from proceedings against their property without the security of an affidavit made and bond given by the plaintiff in the attachment, whenever the leading process in the suit has not been executed on the person of the defendant when within the State. It is manifest that without this provision every person having, or pretending to have, a claim against a non-resident, might evade the making an affidavit and giving a bond, as required in an original attachment, by first issuing original process against the defendant, and then, upon the return of non est inventus, electing to issue a judicial attachment, instead of issuing

Deaver v. Keith.

an alias or pluries capias under the 52d section of the 31st chapter of the Revised Code above referred to.

The proceeding in this case purports not to be instituted, under the 16th section of the 7th chapter of the Code, for an injury to the proper person or property of the plaintiff; but, if it were, it cannot be sustained, because it does not appear that the defendant had absconded or concealed himself within three months after the commission of the wrong.

The only inquiry which remains to be considered is, whether the defendant had a right to move to dismiss the proceedings without having replevied the property attached. The judicial attachment having been issued without any legal authority, the defendant was not in any way within the jurisdiction of the court, and it had not therefore any authority to proceed; and nothing was left for it to do but to dismiss the proceeding, and this it ought to have done at the instance of the defendant, or of any other person, or ex mero motu. See Webb v. Bowler, 5 Jones, 362; Israel v. Ivey, decided at the present term, and the cases there referred to.

The judgment must be reversed, and it must be certified to the court below that this court is of opinion that the attachment was not a proper process to be sued out by the plaintiff in this case, and that the writ ought to be quashed.


Judgment reversed.

Carter v. McGehee.


A creditor having, in March 1863, refused to accept Confederate or State notes in payment of debts contracted before the late war, the debtor brought to him a bond upon a third party for the amount due, payable to the creditor, who agreed to take it in discharge of the debt, provided the debtor would sign it as surety. He did so and the former evidences of indebtedness were cancelled. Held that the debtor became a guarantor of the bond and was liable in assumpsit for the full amount, without reference to the laws providing for a scale of debts contracted during the war. (Carpenter v. Wall, 4 D. & B., 144, and Green v. Thornton, 4 Jon., 230, cited and approved.)

ASSUMPSIT, tried before Mitchell J., at Fall Term 1867 of the Superior Court of ROCKINGHAM, upon the following case agreed :

The defendant's intestate, in the years 1856 and 1857, became indebted to the plaintiff for borrowed money and executed bonds therefor at the dates of the loans. The principal and interest amounted on the 14th of March 1863 to $3000. On that day Scales offered to pay off his bonds in Confederate notes or State money, and the plaintiff refused to accept them. Thereupon Scales procured the bond of the county of Rockingham for $3000, payable to the plaintiff, but upon what consideration the plaintiff was ignorant. Scales tendered it to the plaintiff in payment of his bonds, and he refused to accept it unless Scales would become surety for the county. Scales signed as surety at the foot of the bond, and thereupon the bonds given for the borrowed money were surrendered.

The plaintiff contended that the defendant was liable for $3000, with interest from March 14th 1863. The defendant insisted that he was entitled to the benefit of the scale of depre

Carter v. McGehee.

ciation under the act of Assembly of 1866, ch. 39. It was agreed that if the court should be of opinion with the defendant, judgment should be entered for $750 and interest, but if with the plaintiff, for $3000 and interest.

Upon the case agreed, his Honor gave judgment for $3000, with interest from March 14th, 1863, and the defendant appealed.

Merrimon for the appellant.
Phillips & Battle, contra.

BATTLE J. The judgment rendered by his Honor in the court below upon the case agreed is undoubtedly correct. The argument of the defendant's counsel to the contrary is based upon the fallacious idea that the intestate of the defendant was bound as the surety of the county of Rockingham, in the ordinary sense in which the word surety is used in connection with a principal. But in legal effect he was not a surety, but a guarantor. A guaranty is defined to be "a promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person, who is himself liable in the first instance to such payment or performance." Carpenter v. Wall, 4 Dev. & Bat. 144; Fell on Guar.; 1 Smith Mer. Law, 277. The present case comes directly within that definition. The county of Rockingham became bound to pay the plaintiff, as soon as its bond was delivered to him, the sum of three thousand dollars, and the defendant's intestate promised in consideration of the transaction between him and the plaintiff, to pay the debt in case of the failure of the obligor to do so.

The transaction between the parties to the guaranty required a consideration for its support. Here there was a consideration, which was the discharge of debts due from the intestate to the plaintiff, which were admitted to have been

Carter v. McGehee.

of the value in specie of three thousand dollars. To such a claim it is manifest from its express words that the act of 1866, ch. 38, entitled "an act relating to debts contracted during the late war," did not intend to apply the scale of depreciation provided for in ch. 39 of the laws passed at the same session.

In opposition to this view of the case, it was urged by the defendant's counsel that the intestate signed the county bond professedly as surety, and not as guarantor, and that, therefore, he cannot be bound as guarantor. The case of Green v. Thornton, 4 Jon., 230, is directly in point against this objection. In that case the defendant, whose name was signed to an instrument purporting to be an indenture between the plaintiff and another person, was held to be a guarantor, though the word "security" was added to his name. It is true that the plaintiff failed to recover against him, because he could not prove any consideration for the contract of guaranty; but, in the present case an ample consideration was proved, and the plaintiff is not prohibited by the act of 1866, above referred to, from recovering to the extent of it. The judgment is affirmed.


Judgment affirmed.


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