FRALEY . KELLY.

after the defendant had obtained his discharge, he offered to sell the plaintiff a mule, to which the plaintiff replied, "I hold your note, and if we can agree upon the price of the mule, I will credit the note with the price," to which proposition the defendant assented; that the plaintiff and defendant agreed to meet the next day, when the price of the mule was to be fixed; that the defendant did not go to the place agreed on, but the plaintiff did, with the note and a bridle, and remained there all day. The plaintiff also offered evidence that, about the first of August, 1870, the defendant said to the plaintiff, "Won't you take a good mule towards the debt?" Plaintiff replied, "The money is what I want," and defendant then said, "You must wait for your money."

His Honor, upon this testimony, intimated an opinion that plaintiff had not made out his case, and, in deference to this intimation, he submitted to a nonsuit. We think his Honor was right in the opinion intimated. It was said on the argument, that less evidence was necessary to revive a debt discharged by a decree in bankruptcy than would be required of a debt barred by the statute of limitations, as the law stood before such promises were required to be in writing. No direct authority was cited for this opinion. This Court does not sanction that doctrine, but holds that it will require a full, express, and unequivocal promise to pay, and one that binds the bankrupt personally to pay, notwithstanding his certificate. As Baron Parke says, in the case cited, it must be a promise that he, and not his estate, would pay; for the mere acknowledgement of a debt, though implying a promise to pay, would amount to no more than an account stated, and, though in writing, would be a promise which the certificate would bar.So that we hold that, in case of a debt barred by a certificate in bankruptcy, nothing short of a distinct and unequivocal promise by the defendant to pay, notwithstanding his discharge, will support an action upon a new promise. There was error. This will be certified. PER CURIAM.

Venire de novo.

MCCOMBS v. GRIFFITH AND ALEXANDER.

WM. MCCOMBS Guardian vs. W. F. GRIFFITII and J. N. ALEXANDER.

A note given in October, 1863, to a distributee upon settlement of an estate, for an amount due in good money, is not subject to the scale of depreciation.

Civil action on a promissory note for $659.66, given October 20th, 1863, tried before Henry, J., at January Special Term, 1872, of the Superior Court of MECKLENBURG.

The evidence was that the note was given for a distributive share due the plaintiff's ward in the estate of Reid, of which the defendant Alexander was administrator; that in 1860 Alexander sold the property of his intestate, and the defendant Griffith bought to the amount of $1,375, for which he gave his note; that upon the settlement of the estate in October, 1863, the balance due on Griffith's note being about the sum due the plaintiff's ward, Griffith's note was surrendered to him, and he and Alexander executed the note in question to the plaintiff.

The defendants contended that the note was liable to the scale of depreciation, but his Honor charged otherwise, and a verdict was returned and judgment rendered for the face of the note and interest, whereupon the defendants appealed.

Guion and Wilson, for the plaintiff.

Dowd, for the defendant.

READE, J. We agree with his Honor that the note sued on is not subject to the legislative scale. The presumption that was given for Confederate currency is rebutted by the evidence that it was given for other consideration, i. e., the distributive share of the plaintiff's ward in the estate of his father, which he had the right to demand in good money.

There is no error.

PER CURIAM,

Judgment affirmed.

ROBINSON. WILLOUGHBY.

DANIEL B. ROBINSON vs. WILLIS J. WILLOUGHBY.

Where a complaint demanded judgment for the possession of land under a deed absolute on its face, which was subsequently decided upon appeal to this Court to be a mortgage, and a venire de novo on that ground was ordered: Held, that the Superior Court had power (under C. C. P., sec. 132) when the case came on for trial again, to allow an amendment of the complaint, so as to demand judgment for a foreclosure of the mortgage.

When the Superior Court has power to amend, the question of costs is entirely in its discretion.

[Bullard v. Johnson et al., 65 N. C. 436, cited and approved.]

Motion to amend complaint made and heard before Buxton, J., at Spring Term, 1872, of the Superior Court of UNION. The opinion of the Court contains a sufficient statement of the points involved.

The defendant insisted that his Honor had no power to grant leave to amend ; and that if leave were granted, terms must be imposed. His Honor allowed the motion without costs, and the defendant appealed.

J. H. Wilson for the plaintiff.
Battle & Son for the defendant.

BOYDEN, J. This is the same case that was before the Court at June Term, 1871, 65, N. C. R. 520, in which it was decided that the deed from Christenbury, under whom both parties claimed title, was a mortgage, and not an absolute sale, as claimed by the plaintiff; and upon that ground, a new trial was granted. When the case came on for trial again, in the Court below, the plaintiff moved for leave to amend, by changing his action for the recovery of the land into one for the foreclosure of the mortgage. The motion was allowed, and the defendant appealed from this decision of his IIonor, insisting that his Honor had not the power to allow this

ROBINSON v. WILLOUGHBY.

amendment. We think his Honor, under Sec. 132 C. C. P., not only possessed the discretionary power to allow this amendment, but that it was a fit case for the exercise of the power. The plaintiff had instituted his action believing, that the transaction attending the execution of his deed, taken altogether, constituted a sale, with an agreement for a resale, and his Honor on the trial below so decided; but this Court reversed the decision of his Honor, and declared that, looking at the whole transaction, it constituted a mortgage, and not a sale with an agreement for a re-sale.

The object of the action, in its original form, was to ascertain the plaintiff's rights growing out of the transaction attending the execution of the deed, and this is the very object to be ascertained in the action as amended.

This Court, in the case of Bullard v. Johnson and Thomason, 65 N. C. R. 436, has already, substantially, decided the question raised in this case. In that case, his Honor, the Chief Justice, in delivering the opinion of the Court, says, speaking of the 132 sec. C. C. P., "This provision and numerous others, of the C. C. P., show that its purpose is to prevent actions from being defeated on grounds that do not affect the merits of the controversy, whenever it can be done by amendment, the prevailing idea being to settle controversies by one action, and thereby prevent the loss of the labor and money expended in that action, and the necessity for incurring like labor and expense in a second." This Court regards these provisions of the Code among the most important it contains, and we are inclined to give them their full operation, by a liberal construction; so as to let one action settle all the questions growing out of the same transaction, whenever it can be done.

The question of the payment of costs was for his Honor below, and is not the subject of review in this Court. There is no error. This will be certified, &c.

PER CURIAM.

Judgment affirmed,

SANDERS v. JARMAN.

ELI W. SANDERS vs. HENRY JARMAN.

The rule that an endorser, on default of the maker of a note, becomes liable for the amount of the note, is not of universal application to notes endorsed during the late war; but the contract of endorsement in such cases is affected by the legislation relating to the scale of depreciation, &c.

Where a note for $1,200, given in September, 1863, for property worth

$300, was endorsed shortly thereafter by the payee, in consideration of property of the value of $1,200, and since the war the endorsee discharged the maker, in writing, upon payment of $310; Held, that the effect of the release was not to discharge the endorser, but he is still liable for the difference, upon an implied contract in the endorsement that, if the maker failed to do so, he would pay the endorser the value of what he received for the note.

[Summers v. McKay and Sheppard, 64 N. C. 555, commented on and distinguished.]

ACTION OF DEBT, commenced in the Superior Court of CARTERET, in 1866, and heard before Clarke, J., at Fall Term, 1871, upon a case agreed.

The defendant was sued as endorser of a note for $1,200, given to him September 7th, 1863, by one Hill King, and payable one day after date. The consideration of the note was a pair of mules sold by Jarman to King, worth about $300. The defendant was indebted to the plaintiff in the sum of $600, due by note given before the war, and in the latter part of 1863 offered to pay the debt in Confederate money. Sanders, the plaintiff, refused to take Confederate money, but agreed to make an exchange of notes; and thereupon the defendant endorsed to him the note for $1,200, given by King, and took in exchange his note to Sanders for $600, and other notes, given before the war, to the amount of $1,200. Sanders demanded. payment of the note so endorsed to him, of King, and upon being informed what the consideration of the note was, accepted $310 from him, credited the amount on the note, and executed a covenant to him that he should not be held further responsi