#### COMMIRSIONERS OF NEWBERN, TO THE USE OF JAMES H. PRITCHETT vs. JOHN B. DAWSON & AL.

The Commissioners of Newbern recovered a judgment against the sheriff and his sureties for the amount of the taxes due to Ihe town, u’hieh he liad failed to pay over. Afterwards one of the sureties had the money paid and an assignment made to a third person of the judgment, by the attorney of the Commissioners, which was afterwards ratified by the commissioners, and a receipt was given by the treasurer of the board to the sheriff, to enable him to renew his bonds.

Held, first, that the payment of the money and the assignment to a third person of the judgment, did not amount in law to a payment and satisfaction of the judgment, as against the defendants therein.

Held, secondly, that, although the receipt may have operated as a fraud upon'the Court, yet it is not conclusive as to the fact of payment by the de ■ fendants in the judgment, but may be explained.

Held, thirdly, that, though a judge is not required to respond in the very ■words of an instruction prayed for by counsel; yet it is error, if he does not substantially meet the matter of law, and put the matter of fact directly to the jury.

Appeal from the Superior Court of Law of Craven County, at the Fall Term 184D, his Honor Judge Manly presiding.

This was a sci. fa. to Phillip Pipkin,' administrator of John B. Dawson deceased, to revive a judgment recovered by the commissioners of the town of Newbern, at the February Term A. D. 1843, of Craven County Court against his intestate, John B. Dawson. Joseph L. Bryan, John Bryan and John M. Bryan, sureties to his bond, for the default of the said Dawson, as sheriff of Craven County, in not paying over the town taxes due on the property listed in 1841, brought up to the Superior Court by appeal from the County Court. The pleas are mil (id record, payment, accord and satisfaction, release,

*437The plaintiff introduced the record of the judgment upon which the sci.fa. issued.

James W. Bryan was examined as a witness and testified, as stated in the annexed paper {marked B,) which is referred to for greater certainty as a part of the case.

Allen Grist proved that the money was paid by Patrick M. Bryan, and the assignment made to Pritchett was for his benefit, and, it was by his instructions, that the witness made his return upon the venditioni exponas

The defendant exhibited and proved a receipt in writing to his intestate from Thomas S. Gooding, Jr., the treasurer of the commissioners, for the taxes due on the property listed in 1841, bearing date 15th day of August 1843, which for grater certainty is referred to as part of the case and marked (C.)

Thomas S. Singleton, introduced on the part of the defendant, who was commissoner and Intendant of Police at the time the judgment was recovered, and also at the time the assignment was made, proved that he had been instructed by the board of commissioners to employ an attorney to collect the .taxes, due- on the property listed in 1841, from the sheriff, and that he had accordingly employed the services of James W. Bryan for that purpose, but had not received from the board of commissioners any authority to sell and assign the debt, and had not therefore given any. He further proved, that, on the day after the assignment, John B. Dawson exhibited his receipts to the County Court, as required by law, and was permitted to renew his bond and to qualify as sheriff of Craven County, to which office he had been elected for the term of two years from August 1843.

It was admitted. that_ no other money had been paid on the execution except that by P. M. Bryan — that Gooding was the treasurer whose duty it was to receive all the money due to the town, and to dispose of the same under the directions of the commissioners. It was also *438admitted that the money paid by P. M. Bryan went into the treasury of the commissioners, was received by them and disposed of to the use of the town, and also that the sci.fa was issued in the name of the commissioners by the assignee, Pritchett, and was prosecuted for the benefit of Bryan, and wdth the acquiescence of the commissioners.

The counsel for the defendant contended that the receipt to Dau'son was a satisfaction of the judgment — • that the money advanced by Bryan would in law' operate-as a payment, unless there w-as a valid assignment of the judgment — that neither the attorney or treasurer had the authority to sell or assign it — that, if they had been made by the special instructions of .the commissioners, and it was a part of the agreement, that Dawson should have a receipt from the treasurer fo enable him fo renew his bonds, the contract was void and could not be set up by the assignees as an explanation of the receipt.

The defendants’ counsel requested the instruction, that there was no evidence of any authority front the commissioners to the attorney or treasurer to sell or assign the judgment.

The Court instructed the jury', that the receipt, produced by' Dawson’s administrator, W'as not conclusive in its nature, but liable, pursuant to well established principles, to be explained, and it was therefore their duty' fo enquire, upon a due consideration of all the testimony, whether the money7 advanced by P. M. Bryan was intended between the parties as a satisfaction, according to the words of the receipt, or a purchase. If the money was paid by P. M Bryan in order to effect a purchase, and so received by the treasurer of the company, with the approbation of the Intendant, the transaction could not be invalidated as such, or in other w'ords operate as a payment and extinguishment, because there was no previous authority in their corporate capacity to sell. The *439Want of a previous power if it were necessary, would at any rate be cured by a subsequent ratification of the act# reception and use of the money, thus raised, if such were the fact.

Supposing there had been an after arrangement be* tween Dawson and the treasurer of the commissioners, by which the receipt in question was to.be given, and an imposition thus practised upon the Court, in the renewal of the sheriff’s bonds ; and supposing further, that the sheriff could avail himself of his own fraud, such an arrangement would not affect injuriously the rights of one not a party to it. Indeed, if there had been an original frraudulent design entertained by Dawson and Gooding, afterwards carried into effect by the execution of the receipt, it would not invalidate the transaction as a purchase, unless the purchaser participated in it. Under the instructions the jury found a verdict for the plaintiffs, and flmm the judgment thereon the defendants appealed.

(B.)

[James W. Bryan's testimony.'j

I was employed by Henry S. Singleton, Esq., the Intendant of Police of the town of Newbern, to obtain judgment against John B. Dawson, sheriff of Craven County, and his sureties, for the town (Newbern) taxes, due on the property listed in the year 1841. This judgment was obtained according to the due course of the Court in Craven County Court, and the execution was issued to the sheriff of Beaufort County, the defendant, in the same, Dawson being sheriff of Craven, and there being no coroner of Craven County. At the August term A. D. 1843, it became necessary that John B. Dawson should renew his bond as sheriff of Craven, and, on Monday, when I went to the Court house and before I entered the Court house, I met at the door Allen Grist, the* sheriff of *440Beaufort, Thomas S. Singleton and Thomas S. Gooding, also one of the commissioners of the town of Newbern and treasurer, as I was informed subsequently, of the board of commissioners. There was much conversation about Dawson’s being unable to renew his bonds in consequence of his inability to settle the public dues and produce the required 2’eceipts, but by whom this conversation was had I am unable now particularly to say. P. M. Bryan came to me and asked me, if he could not purchase the execution in question in favor of the Commissioners of Newbern, and have it assigned to him. I told him he could certainly do so, and 1 left them all below stairs and went up into the Court room. Shortly thereafter, Thomas S- Singleton, Allen Grist, sheriff of Beaufort, Thomas S. Gooding and P. M. Bryan came into the Court room. Thomas S. Singleton, Allen Grist and Thomas S. Gooding came into the bar — the former took his seat on the left hand side of the bar and Thomas S. Gooding and Allen Grist seated themselves on the same bench beside me on the right hand side of the bar. Upon taking their seats, Thomas S. Gooding remarked to me, we have arranged this execution with P. M. Bryan and he is to pay the money and take an assignment of the execution, and we wish you to make the calculation and assignment, and thereupon Mr. Grist laid the execution before me on my table. I made the calculation and wi’ote the receipt and assignment, as appeared on the execution, having previously asked to whom the assignment should be made,' whereupon P. M. Bryan, who was standing at my back outside of the bar, remarked that he wished it made to Mr. Pritchett. P. M. Bryan then handed to me some money and one or two checks of the Wilmington Branch of the Bank of the State on the Bank here, which were payable to said Bryan and endorsed by him. Upon the receipt of these moneys and before I would settle with Thomas S. Gooding, knowing that he was of dissipated *441habits, I enquired aloud if Mr. Gooding was the treasurer of the commissioners of the town of Newbern and was informed that he was. I thereupon paid Mr. Grist his commissions, gave my check to Thomas S. Gooding, as treasurer of the commissioners of Newbern for the amount due the commissioners on the execution, and also gave my check to P. M. Bryan for the balance due him, the checks exceeding the amount due on the execution, and Thomas S. Gooding signed the receipt and I accordingly made the assignment. Thomas S. Singleton, who all this time was sitting on the opposite side of the bar, asked if the business was completed or the arrangement made, I do not know which, and upon being informed that it was, they all left the bar.

I had no special authority from the commissioners to make the assignment of the execution, other than what took place as herein stated with Thomas S. Singleton and Thomas S. Gooding, both of them at the time being commissioners of Newbern, the former the Intendant of Police and the latter the treasurer of the board, and I acted in the matter as I then and now conceive, under their instructions alone. The advancement of the money was intended by the parties to he a purchase, out and out, of the execution, and the money due upon the same, and W'as so expressed at the time when I "was sitting in the bar. John B. Dawson was not present, when this transaction took place. Thomas S. Gooding received the moneys for my check on the Bank of the State. I deemed it best, as Gooding was a dissipated man, for my own protection, that he should put his receipt on the execution, but P. M. Bryan had nothing to do with this transaction of taking Gooding’s receipt. I knew nothing of any other receipt given by Gooding, and no mention was made of such a thing to me.

*442(C.)

Received of John B. Dawson, sheriff'of Craven County, six hundred and sixty eight dollars and fifty nine cents (068 59,) being the amount of taxes due to the commissioners of the town of Newbern, for 1S41, and being all that is due to the said commissioners from the said Dawson.

THOMAS S. GOODING, Jr., Treas’r.

August 15th, 1843.

W. H. Haywood,for the plaintiffs.

Donnell, for the defendants.

Pearson, J.

The counsel of the defendants insisted, that the money, advanced by Bryan, would in law operate as a payment, unless there was a valid assignment of the judgment.

This position is untenable. It is well settled, that judgments, as well as notes, may be kept up for the benefit of a surety, who advanced the amount of the debt to the creditor. This could not be, if a valid assignment was necessary; for judgments are not negotiable, and an assignment does not pass the legal interest. If the money be advanced by the surety, it is presumed to be a payment, and it is necessary to rebut this presumption, by taking an assignment to a third person. If it be a note, the legal interest passes to the assignee, to the use of the surety. If a judgment, the legal interest does not pass ; and the only effect of the assignment is to rebut the presumption of payment by an unequivocal act, shpwing the intention to be, to keep up and not to extinguish the judgment.

If the money be advanced by a third person, (as was done in this case,) there is no presumption of payment, for a payment cannot be made by a stranger, and there is no *443occasion for an assignment. The only purpose it can answer, when the security is not negotiable, is to furnish proof, in reply to any that, by possibility, might be made, tending to show that the money belonged to the debtor. For such purpose it is not necessary that the assignment should be valid ; it is sufficient for it to be made by the person to whom the money is paid, as explanatory of the act — apart of the res gesta, showing the intention.

The counsel further insisted, that “if it was a part of the agreement, that Dawson should have a receipt from the treasurer to enable him to renew his bonds, the contract was void, and could not be set up in explanation of the receipt.”

The charge in response to this, is “supposing there had been an after arrangement between Dawson and the treasurer of the commissioners, by which the receipt in question was to be given, and an imposition thus practrised upon the Court in the renewal of the sheriff’s bonds; and supposing further, that the sheriff could avail himself of his own fraud, such an arrangement would certainly not. affect injuriously the right of one not a party to it. Indeed, if there had been an original fraudulent design, entertained by Dawson and Gooding, afterwards carried into effect by the execution of the receipt, it would not invalidate the transaction as a purchase, unless the purchaser participated in it.”

The defendant excepts, because the charge is not responsive to the instruction prayed. We think the exception well founded. The instruction, prayed for, is not stated with much distinctness, and it is probable that in the hurry of the trial, his Honor did not fully apprehend it; it alleges, as a fact, that Bryan was a party to the fraudulent agreement, and as a matter of law, that if such was the fact, the plaintiffs could not explain the receipt.

*444If the Court was against the defendants, upon the law, they had a right to have the opinion positively'- expressed ; if with them, to have the fact directly and distinctly submitted to the jury. We infer that his Honor was with the defendants, upon the matter of law. But the fact was not directly and distinctly left to the jury. The first proposition, which supposes an after arrangement between Dawson and the treasurer; and the second, which supposes, that Dawson could take advantage of his own fraud; and the conclusion, that such an arrangement would not affect injuriously the right of onp, not a party to it; do not touch the instruction prayed for.

The last proposition, that if there was an original fraudulent design between Dawson and Gooding, it would not invalidate the transaction as a purchase, unless the purchaser participated in it, is an inferential expression of opinion, in favor of the defendants as to the law. But it does not bring to the notice of the jury, the matter of fact, whether Bryan was or was not a party or privy to the fraud. In the prominent and direct manner, in which the defendants had a right to have it presented, it was the pivot upon which the ease turned, so far as the jury were concerned, yet it is introduced indirectly, with the word “unless,” treating it as a new qualification of a preceding proposition.

A Judge is not required to respond in the very words of the instruction, but it is error, if he does not substantially meet the matter of law and put the matter of fact directly to the jury.

The defendants are entitled to anew trial, if the matter of law be with them, assuming the fact to be' as they allege.

The agreement was a fraud upon the public ; if it was executory, no Court would enforce it; but it was executed and the inquiry is, as to its effect.

*445The defendants insist, that as a fraud was practised upon the Court, by Dawson and the treasurer of the plaintiffs and Bryan, for whom the plaintiffs hold the legal estate, the receipt by which the fraud was effected cannot be explained, and it must be taken as a fact, that Dawson did pay the judgment.

It is clear that this is not according to the truth, for Dawson never paid one cent. The money belonged to Bryan and he allowed Gooding to give Dawson a receipt for the taxes of property listed in 1841, by which the Court were deceived. Upon what principle can this establish a payment by Dawson, or shut out the truth, as between the parties to the fraud? If, instead of a receipt for the taxes for which the judgment was taken, satisfaction had been entered upon the record, that would have discharged the judgment (as a release discharges a bond) and the parties would have been concluded. But a receipt never concludes : it is merely a written admission, and may be explained like a verbal one. Here the very fact of the fraud explains the receipt, and shows how it happened to be given, when no money was paid by Dawson. It is a key to the transaction and opens it at once. Bryan advanced the money, took the judgment as a security, and permitted a falsehood to be certified to the Court, to accomodate his friend Dawson.

Relieved of all collateral matter, it is simply this case: a creditor give his debtor a receipt (no money being paid,) to enable him to acquire a false credit; does that pay the debt, or prevent the creditor from explaining the receipt ? What right a person, defrauded by such a falsehood, may have, is another question. The debtor canhot, on the receipt, except as evidence of a payment, and the other evidence shows it to be false.

Upon the whole the defendants haveno right to complain.

Per Curiam.

Judgment affirmed.