Bryan Ex Rel. Ricks v. Harrison

Read® , J. One Earl was the principal in the bond sued on, and the defendants were his sureties. Consider the case as if Earl were the defendant. What would be his liability % Ordinarily, the amount of the bond. But in this case he would have the right to say, that he is not liable for the amount of the bond, because the statute provides, that it is presumed to be solvable in Confederate currency. And then, nothing more appearing, the legislative scale would be applied at the date of the bond, September, 1862, and judgment would be given for the amount of the value of $1,200, of Confederate money at that time, say $600. But then the plaintiff would have the right to rebut the presumption that it was solvable in Confederate currency, by showing that the consideration was not Con-* federate money, but was a tract of land. And then judgment would be given, not for the amount of the note, nor for the value of Confederate currency, but for the value of the land. But the principal debtor, Earl, is not the defendant. The defendants are his sureties. And the question is, what is their liability % The argument for the plaintiff sought to establish two propositions: 1. That the principal, Earl, is liable for the face value of the note; and 2. That the defendants are guarantors of his liability and for the same amount, the face value of the note. We have seen that the first proposition is not true; but that Earl’s liability is the value of the land. And then, if we admit that the second proposition is true, that the sureties liabilities are the same, the plaintiff and defendants are together; for the defendants contend that their liability is the value of the land. It is evident that the verdict and judgment were for the face value of the note; and that was erroneous. And for that error there must be a venire de novo. This gives the defendants all they asked for below. Whether upon another trial either party will insist that the measure of the defendants’ liabilities, is the *480 scaled value of their note at its date, will be as they may be advised. We express no upinion upon that point. Bryan v. Harrison, 69 N. C. R., 151; Robeson v. Brown, 63 N. C. R., 554; Terrell v. Walker, 66 N. C. R., 256; Sluder v. Woodfin, Phil. R., 200; Jarmin v. Saunders, 67 N. C. R.; Carter v. McGee, Phil. R., 431. There is error. Pbe CubiaM. Venire de novo.