Superior Court of North Carolina, 1796

Davis v. . Wilkinson

Superior Court of North Carolina · Decided May 5, 1796 · PER CURIAM.

2 N.C. 334

Counsel

Jones for the defendant: This act was made for the benefit of the obligee or creditor, as well as for that of the debtor. It was for the benefit of the obligee that he should not be confined to the survivor, as he perhaps might be insolvent or not to be come at, but that he might resort also, if he chose to the executors of the deceased, who perhaps were solvent and within the reach of process. The old rule was frequently injurious to the surviving obligor where he was only a surety. The creditor was obliged in the first instance to take his remedy against him. The act meant to remedy these mischiefs by enabling the creditor to sue either the one or the other, at his election. E contra . It was urged that the point now in controversy had (336) been settled at Salisbury, upon argument in Brown v. Daniel Clary, ante , 107, September Term, 1794.

Opinion of the Court

The doubt arose upon the construction of the act of 1789, ch. 57, sec. 5: "And whereas it is a rule of common law that in case of the death of the joint obligor the debt can never survive against his heirs, executors or administrators, which rule frequently is injurious and oppressive to the surviving obligor or obligors; to remedy which, Be it enacted, That from and after the passing of this act, in case of the death of one or more joint obligor or obligors, the joint debt or contract shall and may survive against the heirs, executors or administrators of the deceased obligor or obligors, as well as against the survivor or survivors; and when all the obligors shall die, the debt or contract shall survive against the heirs, executors and administrators of all the said joint obligors. After a few days taken to consider; they gave judgment.

Addendum

We have looked into the case cited at the bar the other day, decided at SALISBURY. It was a case decided upon argument by ASHE and WILLIAMS, JJ. We are satisfied with the reasons of that decision as given by WILLIAMS, J. Wherefore, let judgment be entered for the plaintiff; and it was entered accordingly.

Then the plaintiffs in all the other suits depending upon the decision of this point entered up their judgment also.

See Brown v. Clary, ante, 107.

Cited: Smith v. Fagan, 13 N.C. 302.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.