(after stating the facts). It was earnestly contended by counsel on the argument before us, that the appellant's action mentioned against Tate was founded upon a tort., and his recovery thereon was damages for a tortious injury, and therefore his debt against the supposed bank referred to, remained unpaid, and unaffected by such recovery, and he has the right to share in the assets of the bank to be distributed to its creditoi’s in this action, to the extent of the whole of his alleged debt.

If this contention were well founded, it is not at all certain that the appellant would be entitled to prove so much of his claim as is equal to the sum of money he recovered and received from Tate in the action referred to. The recovery from the latter was so much of the appellee's deposit in the supposed bank, as was demanded in that action; it was expressly made the ground and the measure of the recovery. If the cause of the action had been tort, and the recovery damages therefor, then the measure of damages would have been. — .not- the debt demanded — but only a sum of money equal to so much of the debt as the bank could not pay.

But we think the counsel for the appellant- misapprehends the nature of the cause of action sued upon against, and the recovery from Tate. The Court held in that action, that he, having allowed himself to be advertised and held out to the business community as President of the supposed bank, thereby made himself liable directly for the plaintiff’s debt — the deposit- — the very debt the appellee seeks to prove and have paid in this action. In the action against Tate, the Court allowed the plaintiff, the present appellant, not to recover damages as for a tort, but his debt — the debt in great, part- he now seeks to prove and have paid a second time. This appears from the record of that action, and as well from what this Court said on the appeal in it. In that appeal, Hauser v. Tate, 85 N. C., 81,this Court, the Chief Justice delivering the opinion, said: “The remaining exception is to the direction as to the damages, and is equally untenable. If the defendant's legal undertaking was collateral and subsid *317 iary, the damages would consist in the money actually lost, that is, the entire sum, less that receivable in the distribution of the assets by the receiver. But the obligation is direct and original, as that imposed on Simonton himself, because of his participation in giving the bank credit, and inducing the plaintiff to make deposits.”

The appellant having been allowed to recover from Tate the greater part of the very debt he now seeks to prove in this action, and having received the money in discharge of that recovery, he has not the shadow of right to have the same amount allowed and paid a second time.

There is no error in the order appealed from, of which the appellant can complain, and the other creditors do not appeal.

Let this opinion be certified to the Superior Court, to the end that further proceedings may be had in the action according to law. It is so ordered.

No error. Affirmed. '