Womble v. . Fraps

ByNüm, J. When the answer is put in in good faith, and •is not clear]}1- impertinent, the defendant is entitled to have the facts alleged in it either admitted by a demurrer or passed on by a jury. The courts do not encourage the practice of moving for judgment upon the answer as being frivolous. Erwin v. Lowery, 64 N. C., 321; Swepson v. Harvey, 66 N. C. 436. The defendant here is placed at a disadvantage. He is a surety only, the principal being a bankrupt and .the obligee being dead. He cannot therefore speak with precision or certainty in his defence. But he is entitled to all the defences of his principal; and he alleges, (1) that the assignee of his bankrupt principal received a considerable sum of money by the sale of his effects which has been received .and is applicable to this debt; and (2) that since the bankruptcy of Thiem, Hesselbaeh, the creditor, became indebted to Thiem, the principal debtor, in a large sum which should go as a credit on the note, and that Huss'elbach considered the note as discharged in this wTay, and so declared a short time before his death ; and the defendant prays that an account may be taken as to these payments and credits, to which he is entitled, so that the true balance may be ascertained. We do not think these defences are manifestly frivolous, tmt that they do raise questions worthy of consideration; *200 and, if true, they will entitle the defendant either to air account, or a trial by jury, as to these alleged credits or payments. These defences are vaguely stated, but it does not' seem intentional, but in good faith. And it is true that' Thiem, having been discharged in bankruptcy from the payment of the Hesselbaeh debt, was not compellable in law to-pay it; and Hesselbaeh, having, since become indebted to-Thiem, could not, without the consent of Thiem, credit his-note with this indebtedness so as to discharge it; yet it might be a question whether the parties had not agreed, between themselves that the note should be so discharged. It is not probable that Hesselbaeh holding this note on-Thiem, would become indebted to him without some-arrangement for discharging the new debt, by applying it in discharge of his own note on Thiem. Hence it probably' was, that Hesselbaeh considered his note as discharged, and-said he had as well destroy it. The declarations of a creditor that his debt is discharged, is prima facie evidence of payment. State Bank v. Wilson, 1 Dev. 484. We think the-answer is not clearly frivolous, but the plaintiff has the right to require it to be made more specific and certain in its allegations of defence. Cause remanded, to be proceeded with, according to this opinion. Error. Peb. Cueiam. Judgment reversed-