#### Probate Collier, *v.*The Bank of Newbern, James Rhodes, and Charles Horton.

Defendants need not answev immaterial allegations. Therefore, where a plaintiff alledged that an execution in favor of the defendants, being in the hands of the Sheriff he had in satisfaction thereof discounted with the Sheriff a judgment which he, the plaintiff had against him and others, an execution for which was then in the hands of the Coroner, and that mutual receipts had passed between him and Sheriff; and further, that the Sheriff not paying over the money to the defendants, they had obtained a judgment therefor upon the official bond of the Sheriff; it was held,that without the assent of the defendants to the settlement between the plaintiff and Sheriff these facts constitute no defence against the judgment in favor of the defendants, against the plaintiff; and that the defendants need not answer whether the Sheriff and others against whom he had the judgment, were good and able to pay the same, nor whether an execution on said judgment was in the hands of the Coroner, nor whether the plaintiff gave the Sheriff a receipt for the judgment, nor whether the Sheriff and his sureties were able to pay the judgment obtained on his official bond.

The plaintiff alledged, that being indebted to the defendants, the President and Directors of the Bank of Newbern, a suit was instituted and judgment obtained against him at February term of the County Court of Wayne, 1828, for the sum of $1040 88 cents ; thatan execution issued thereon, and came to the hands of *Galvin II. Blackmanfthen*Sheriff of Wayne county, who received satisfaction therefor from him,the plaintiff, and gave him an acknowledgement for the sum of $1055 13 cents, which was in full thereof, except the cost3; that the whole amount of the execution was not paid in money, hut a part thereof was satisfied in the following manner: One *John Sneed*liad, before that time, obtained a judgment against *Blackman, Stephen Smith*and others, for the sum of $1627 70 cents; that the. plaintiff received an assignment of part of said judgment, an execution on which was then in the hands of the coroner of the county of Wayne. That when the execution against the plaintiff in favor of the Bank of Newbern came to the hands of *Blackman,*the plaintiff, believing the judgment *526against *Blackman, Smith*and others to be perfectly good, and that lie-might legally discount with *Blackman*the amount of his part of *Snead’s*judgment, in satisfaction of the execution in favor of the Bank of Newbern,. did in good faith make that arrangement with *Blackman,*and after paying the balance of the execution in money, received from him the receipt above mentioned, and then gave a receipt on the execution against *Blackman*for the amount thus discounted.

The plaintiff alleged further,that some time after this settlement was made, the defendant, the Bank of New-bern, instituted a suit by *scire facias*to revive the judgment against him, the plaintiff. , And at the Spring Term, 1833, of the Superior Court, obtained a judgment for the sum of S915 4 cents, it being the balance due after, allowing certain payments made on account thereof, by Blackmanthat whilst the suit by *scire facias*was pending, the President and Directors commenced suit on the official bond of *Blackman*against him and his sureties, the defendants *Rhodes*and *Hopton,*and obtained a judgment against them for the debt due said President and Directors from the plaintiff. But the plaintiff alleged that the President and Directors of said Bank colluding, with the other defendants, *Rhodes*and *Hopton,*forbore to collect the money from them, they being perfectly able and sufficient to pay the same, but was pressing the plaintiff therefor.

The prayer of the bill was for an injunction to restrain the defendants, the President and Directors of the Bank of Newbern, from enforcing the collection of the judgment on the *serie facias*against the plaintiff, until they had first endeavored to obtain satisfaction from *Blackmar,*and the other defendants, on the judgments against them; or that upon receiving satisfaction from the plaintiff, they might be compelled to assign to him the last mentioned judgment.

The defendants, the President and Directors of the B,ank of Newbern, admitted that the plaintiff was indebted to them, and that they had instituted suit and obtained judgment for the amount due as stated. They also *527admitted the assignment by *Snead*to the plaintiff, of-a part of a‘judgment which he had previously obtained against *'Blackman,*¡Smif/iand others. They admitted further, that they had understood and believed it to be true, ^]ia-j- |jle plaintiff bad-made some arrangement with *Black-man,*by which *Blackman*was *to*take upon himself the payment to‘the defendants of their judgment against the plaintiff, and that *Blackman*executed a receipt to the plaintiff for the amount of their judgment, as if it had been paid to him as Sheriff. But they did not admit that the plaintiff in making this arrangement with *Blackman,*acted'fairly and in good faith, under tiie belief that hehad a right so to do, on the contrary they stated it as their ' belief, that it was a cunning and dishonest contrivance between the plaintiff and *Blackman,*to relieve the latter from the pressure of *Snead’s*execution ; and also to pay the debt of the plaintiff to the defendants, by throwing it upon *Blackman*and his sureties. The defendants further stated that they did not know whether the plaintiff did or did not giv-c any receipt, on account of *Snead’s*judgment, in return for the receipt given by *Blackman*for the judgment against the plaintiff in favour of the defendants; but if such were the case, they submitted that this interchange of receipts could affect them, they not being cognizant of, nor -assenting to it. - The defendants further admitted,that they had instituted a suit by *scire facias*to revive the judgment against the plaintiff, and had obtained a judgment in the Superior Court, on the trial of which suit it had been shown, that at the time when *Blackman*executed tiie receipt to the plaintiff,' he had not in his hands any writ of execution authorising him to collect the money. They also admitted that pending that suit they had obtained a judgment against *Blackman*and the defendants, *Rhodes*and *Hopton,*his sureties on his official bond, for tiie amount of the same judgment. They denied all collusion with the other defendants, or that any agreement, expressed or implied, existed between them, further than that they had directed their attorney to collect the money from the plaintiff before resorting to the other defendants. They stated that this *528was done under a conscientious belief on their part,that *Rhodes*and *Hopton*ought not to be pressed, if the money -'could be got out of the plaintiff — that in point of interest it was immaterial to them from whom the money was received ; and they submitted upon the receipt of the amount due them, to assign cither of their judgments as the Court might direct.

The answer of the other defendants, *Rhodes*and *Hopton,*corresponded in all material respects with that of the President and Directors of the Bank of Newbern, only they stated further, that at the time when the judgment was obtained on the official bond of *Blackman,*they were ignorant of the fact that vthen *Blackman*gave the receipt to the plaintiff, he had no. execution in his hands authorising him to receive the amount of the judgment in favor of the other defendants against the plaintiff.

To these answers the plaintiff excepted : 1st, because the defendants had not answered and set forth, whether *Blackman, Smith*and *others,*against whom *Snead*had obtained judgment, and which judgment was in part assigned to the plaintiff, were perfectly solvent and good and able to pay that judgment.

2dly. Because they had not answered and set forth whether *Rhodes*and *Hopton,*the sureties of *Blackman,*against whom the President and Directors of the Bank of Newbern bad obtained judgment, were perfectly solvent and able to pay tbe judgment so recovered against them.

Sdly. Because they had not answered and set forth, whether an execution was in the hands of the Coroner of Wayne county, against *Blackman, Smith*and others on the judgment obtained by *Snead,*and which had been assigned to the plaintiff.

4thly. Because they have not answered and set forth, whether the plaintiff gave his receipt on the execution against *Blackman, Smith*and others, issued on the judgment in favor of *Snead,*and which was assigned to the plaintiff as beforo mentioned.

*529His Honor, Judge Donneee, at Wayne, on the last Spring Circuit, *pro forma*allowed the exceptions, and the defendants appealed.

Mordecai, for tiie plaintiff.

*J. II. Bryan, contra.*

Daniei, Judge.

The first exception to the sufficiency of the defendants answers, must be overruled; because, whether *Blackman, Smith*and others, were good and able to pay the judgment which *Snead*had obtained them, (a part of which belonged to the plaintiff,) was a matter quite immaterial in this case ; as it is not alleged by the plaintiff in his bill, that the Bank assented to any arrangement by which its judgment against the plaintiff,should be satisfied out of any portion of *Snead’s*judgment against those persons; and the Sheriff had no execution in his hands at the suit of the Bank against the plaintiff.

The second exception must be overruled; because although *Blackman, Ehodcs*and *Ilopton*may bo able to pay the judgment which the Bank obtained against them, still as no payment or satisfaction has actually been made on this judgement, the circumstance of the judgment having been obtained by the Bank against the Sheriff and his sureties, is not, in law or equity, a satisfaction or discharge of the judgment which the Bank had before obtained against the plaintiff, although the two judgments were in fact for one and the same demand. The Bank had its election to make the money either out of them or the plaintiff; and the election the Bank proposes to make is obviously the just and equitable one, because the Sheriff’s sureties were not properly chargeable.

The third exception must be overruled ; for if *the [act*was that the coroner had an execution in his hands at the instance of *Snead*against *Blackman, Smith*and others, and if at that time the plaintiff thought proper to give *Blackman*a receipt for his, the plaintiff’s, part of *Snead’s*judgment, under an agreement with *Blackman*that he would pay the Bank that sum, on its execution *530The agree-Nothing against the plaintiff, if it had been then in his hands as sheriff; still as no cash was paid, such an arrangement made by the plaintiff and the sheriff, without the assent of the Bank, could in no wise operate as a discharge of the plaintiff from his liability to the Bank, ment of the sheriff could not bind the Bank, but the receipt of the cash, or a levy by the sheriff, and taking property sufficient to discharge the execution out of the possession of the present plaintiff could discharge his liability.

Nothing1 hut cash received by the Sheriff from the defendant in an execution, or a levy upon his property,and taking it out of his posssssion, can discharge the debt due the plaintiff

The fourth exception must be overruled; because the bill does not pretend to state that the Bank assented to the transaction. Therefore, whether the plaintiff gave his receipt to *Blackman,*for his part of *Snead’s*judgment against *Blackman, Smith*and others, was a tiling .quite immaterial to the Bank. It was neither payment or satisfaction of the execution which the Bank then liad against the plaintiff. But the defendants in their answer do state, that they do not know whether the plaintiff gave *Blackman*any receipt for his part of *Snead’s*judgment. Their omitting to say whether they were informed or believed that the plaintiff had given such a receipt, in this case, would have been useless, for the reasons before mentioned. The answers state that it was proved on the trial, that *Blackman*did not have the execution for the Bank in his hands, at the time lie and the plaintiff made the agreement. We think that the order made in the Superior Court, allowing the exceptions to the sufficiency of the answer must be reversed, and that all the exceptions must be overruled.

Ter Curiam — Decree below reversed.