{
  "id": 11276731,
  "name": "Thomas Foster v. James Frost",
  "name_abbreviation": "Foster v. Frost",
  "decision_date": "1834-06",
  "docket_number": "",
  "first_page": "424",
  "last_page": "429",
  "citations": [
    {
      "type": "nominative",
      "cite": "4 Dev. 424"
    },
    {
      "type": "official",
      "cite": "15 N.C. 424"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "1 Hawks 483",
      "category": "reporters:state",
      "reporter": "Hawks",
      "case_ids": [
        11276659
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/8/0483-01"
      ]
    }
  ],
  "analysis": {
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    "simhash": "1:f4aba5f8ddad94e1",
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  "last_updated": "2023-07-14T18:49:44.411836+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Thomas Foster v. James Frost."
    ],
    "opinions": [
      {
        "text": "G-astoN, Judge.\nThe plaintiff declared against the defendant in debt upon his bond, and after oyer of the obligation and condition, the defendant pleaded the general issue, and also performance of the condition, whereupon the. plaintiff assigned a breach, and upon this assignment issue was also joined. Upon the trial of these issues the defendant objected that the condition was insensible, and the obligation therefore void; which objection the court overruled. We are of opinion that in this the court decided correctly. Were the condition insensible, the consequence would be, not to make the bond void, but to make it a bond without condition. But the condition was sensiblo, and could well be understood, and any words by which the intent of the parties can appear, arc sufficient to make a condition of an obligation. The condition is inserted for the benefit of the obligor, and to enable him to save himself from the penalty. If the words of a condition however improper, should be pronounced senseless, then might the penalty be enforced against the obligor notwithstanding he liad fully executed the condition according to the intention of the parties.- (Butler v. Wigge, 1 Saun. 65; Cromwell v. Grumsden, 1 Ld. Ray, 335.) Any uncertainty or mistake therefore in the condition may be sup-' plied and corrected by a reasonable intendment,and words which by themselves have no distinct, meaning, and which serve but to perplex and embarrass the meaning of the residue of the condition, should be altogether rejected. (Holmes v. Ivy, 2 Show. 16. Maulevever v. Hawxby, 2 Saun. 78.) Let these rules be applied to the construction of the instrument in question. It is executed in Rowan county, is payable to the plaintiff as deputy sheriff of that county, and is dated on the 8th of April 1829. The condition recites that the said deputy sheriff hath levied an execution at the instance of Wales and others on certain personal property of the obligor Cook, which at the request of the said Cook and his co-obligor, the defendant, has been left in their care and possession until the day of sale. After this recital it proceeds to declare, \u201cthat if the said Frost shall deliver the said property to the said deputy sheriff, at Mocksville, on or before 15 Friday before May court, then the above obligation shall be void, but otherwise in force.\u201d The word fifteen, or rather the figures 15, standing by themselves, convey no definite meaning. They cannot without absurdity and absolute nonsense qualify the succeeding words \u201cFriday before May court,\u201d for but six Fridays could intervene before that court. We are bound judicially to know when the |],e terms of our courts are held because these are fixed by the public law. It is the May term of Rowan county that is referred to in the condition, for the bond is executed in that county, is payable to an officer of that county, and to secure the re-delivery to him of goods levied on for tiie purpose of a public sale in that county. And it must be the May Term of Rowan county, and not of Rowan Superior court that is meant, because the county court is held in May, and the Superior court is not. Lot the figures 15 then, be rejected as by themselves unmeaning, and when connected with others which are intelligible, producing nothing but absurdity, and tve see distinctly on the face of the condition, that its design is to afford the obligors an opportunity of discharging themselves from the penalty, by a re-delivery to the officer of the property, on or before the Friday preceding the next May Term of Rowan County Court.\nNotice i\u00bb judicially taken of the time when the County and Su-commence.\n\u00c1 \u00abVriff- who has seised proper-satisfy^n^exeem tion, and surren-ceivhig aP\u00b0forthcoming bond, is breach^ ofPthe a bond, to recover the amount of the judgment; a1-noT^have'pai'd'h to the plaintiff in execution,\nWe also approve of the instruction which the judge. S'avG to the jury on the subject of damages. If an officer levy an execution on goods of a defendant, sufficient to sat\u2018sfy the judgment of a plaintiff, the property in those goods, for the purpose of satisfying that judgment is ves-te<* *n bim, an(i if be permit the same to be eloigned so as to defeat tiie execution, it is not to be questioned but Ibatlie thereby becomes debtor to the plaintiff for the amount of the judgment. The act of 1807, (Rev. ch. 731,J> allows an officer when property is levied on, and permitted by him to remain with the possessor until the day of sale, to take a bond for the forthcoming thereof, to-answer the execution, but declares that the officer shall nevertheless remain liable as theretofore in all respects, to the claims of the plaintiff. Of course an action cannot be brought on this bond until there be a breach, But when there is such a breach, the damages ought be commensurate to the injury sustained, and surely the val ue of his property thus withheld \u2014 the amount of the debt or liability thereby thrown upon him, is as definite and capable of being measuredbefore, as after he shall have paid this price, or satisfied this debt to another. When a mayhem or a battery is committed, the doctor\u2019s bill is a proper item to be regarded by the jury in the estimate of damages, although it may remain undischarged at the moment of the trial. Damages comprehend the immediate injury, and the direct, obvious and Ordinary consequences of it. And for all these the injured person is entitled to recover in an action for the wrongful act or omission, because they are its necessary results. \u25a0\na conveyance by a stranger to demnify him asamst by tion, is admissa-ble aF^ns?L bim> especially if it recites facts mate] \u201dalt\u00b0 the issue, being similar to a declaration made and^not^coritra-dieted,\n^ We see no ground for reversing thejudgment, because of the admission in evidence of the conditional bill of sale or bond, (whatever it may be termed,j executed by Cook to the defendant, in which Cook acknowledges to have received from the defendant the negroes levied on in order to pay off the execution, and thus discharge the delivery bond. It must be regarded at least in as strong a light \u00b0 \u00b0 , as a declaration of facts made to the defendant, and by him admitted to be true. It is therefore competent evidence against the defendant, if the facts which it de-dares, or tends to establish be relevant. These facts are relevant, because from them it appears that the defendant had disabled himself from performing the stipulations in the condition, by a delivery of the property to Cook for the purpose of being sold, and upon an engagement of Cook, and adequate securityfrom him to pay off the judgment, for the satisfaction of which this property had been seized. It has been objected that this testimony may have been injurious to tlie defendant, because it showed that ho had the means'of indemnity, against recovery by the plaintiff- But it is impossible that this objection can be well founded, unless we presume that the jury should be reckless of their obligations, or wholly destitute of intelligence. The most that can be said against proof of such facts in the present case is, that it. was unnecessary, for the performance of the condition was to be shewn by the defendant, and was not required to be established by the plaintiff. But the exhibition of evidence merely superfluous and unnecessary, and which cannot mislead the jury, furnishes no legal cause for exception. -\nAn advance of money made by judgment,1 upon * an assignment of a sa\u00fcs&ct\u00edon\u00b0 of it. The cases of (C Bowks 483,) o\u00b0\u00b601. p. 353,) Bodge? v Armstrong, (ante p. 353,) Shei'wood v Col-dert (\u00cd5. 380,) 'approved.\nUpon the remaining question raised by the defendant it is enough to say that after the decisions in Carter v Sheriff of Halifax, (1 Hawks 483,) Governor v Griffin, (ante 2 vl.p.552,) Hodges v Armstrong (ante 3 vl.p.253,) and Sherrod v Collier, (Ib. 380,) it is hopeless to contend that an advance of money upon, and assignment to a third person of the judgment against Cook, purposely made to keep that judgment alive for the use of his sureties, did or could operate to extinguish such judgment at'law. The whole argument of the defendant upon this point is founded on the assumption that this judgment has been paid. But no part of the judgment has been paid or satisfied. The monies received by the plaintiff, were the consideration for an equitable transfer of his interest therein to the assignee. The judgment itself is wholly unaffected by such transfer, and remains since, \u25a0as it was before, in law, the judgment of him in whose name it was obtained. The whole of the evidence -in relation to this equitable transfer, and the consideration advanced upon it, was irrelevant in this case, and should not have been admitted. But having been received the Court very properly instructed the jury that it did not affect the plaintiffs right to recover, or the amount of that recovery.\nWe see no error in the judgment below, and direct it to be affirmed.\nPer Curiam \u2014 Judgment ateirmed.",
        "type": "majority",
        "author": "G-astoN, Judge."
      }
    ],
    "attorneys": [
      "Pearson, for the defendant.",
      "Nash, for the plaintiff."
    ],
    "corrections": "",
    "head_matter": "Thomas Foster v. James Frost.\nAn insensible condition to a bond renders it single; but unmeaning words in the condition shall be rejected, so as to give the obligor the benefit of it. As where a forthcoming bond, dated in April, was for the delivery of the property the 15th Friday before May Court, the figures were rejected, and the County Court having a term in May, the deliveiy was held to be on the Friday before the ensuing term of that Court.\nDebt upon a bond, for the payment of two thousand dollars, dated April ,8th 1829.\nUpon oyer, the condition was as follows:\n\u201cWhereas the said Thomas Foster, deputy sheriff, hath \u25a0\u201clevied, an execution at the instance of Wales & Er'wm, on \u201ccertain property of John Cooke, consisting of one. ne\u201cgro, named, &c. [seven in all,] which said property, \u201cat the request of the said John Cook and James Frost, \u201cis left in their own care and possession until the same \u201c shall be sold. Now, if the said James Frost shall well \u201c and truly deliver the said property hereinbefore enu\u201cmerated, to the said Thomas Foster deputy sheriff, at \u201cMocksville, on or before the 15 Friday before May \u201c court without damage or further hindrance, then &c.\nPleas \u2014 1st. Non estfactum. 2d. Performance.\nThe.plaintiff then replied, taking issue upon the first plea, and seting out as a breach of the' condition, the non-delivery of the slaves at Mocksville, on the Friday before May Term, 1829, of Rowan County Court. \u2014 \u25a0 Rejoinder, taking issue as to this breach. At the trial before Norwood, Judge, at Rowan, on the last circuit, the plaintiff having inade out a prima facie case, in order to strengthen it, produced a bill of sale made by one Richard J. Cooke to the defendant, whereby two of the negroes were conveyed to the defendant, with the following defeasance. \u201cThe condition of the above obligation is \u201csuch that whereas the aforesaid James Frost having be-\u201ccomc surety for the delivery of seven negroes on &c. at \u201c&c. levied on as the property of John Cook, and the said \u201cFrost having given up to the above bounden R. J.Cook the * \u2018above mentioned seven negroes to make the money by \u201cthat time. Now if the said Cook shall well and truly \"pay off said execution without further damage,then &c.\u201d The defendant objected to this bond or bill of sale, going .to the jury, but his objection was overruled by his Honor.\n'The \u00a1defendant then insisted that the bond declared on was void, because of the uncertainty for the time of the delivery of.the slaves, But his Honor overruled the objection.\nIn order to-reduce the damages to a nominal sum, or at most to the amount of the sheriff\u2019s commissions, the defendant then proved that the judgment in favor of Wales & Erwin, bad been entered up in the Superior Court of Iredell, and that at the time when it was so entered, the defendant Cook prayed an appeal to the Supreme Court, and gave Samuel 'King and James M. Morrison, as sureties to the appeal bond. (Vide ante 2 vol. pages 183 & 341,) that the appeal not having been carried up in time, the execution under which tiie seizure had been made, and the delivery bond executed, had issued from the Superior Court of Iredell; that af-terwards Cook had obtained a certiorari to that court,upon tbe same bond, and that thejudgment below bad been affirmed. That after the execution of the bond declared on, the debt and costs, as well as the costs <>T the Supreme Court, had been satisfied under process, issuing from that court. The. plaintiff in reply to this evidence,, proved very clearly that the amount thus paid, had been advanced by two persons not parties to the judgment, at the instance of King and Morrison, the sureties, and that an assignment of the judgment and execution had been taken by those persons in trust for them.\nHis Honor instructed the jury, that the plaintiff was entitled to recover such damages as he had subjected himself to in consequence of his having levied on property sufficient to satisfy the judgment, and that the money advanced at the instance of the sureties, not being intended as a satisfaction, but the judgment and execution having been assigned to strangers in trust for them, the amount of damages to which the plaintiff was entitled, was not thereby reduced.\nA verdict being returned in favor of the plaintiff, for the amount of the judgment against Cook, including the costs and interest, the defendant appealed.\nPearson, for the defendant.\nNash, for the plaintiff."
  },
  "file_name": "0424-01",
  "first_page_order": 433,
  "last_page_order": 438
}