Dismukes v. Wright , 20 N.C. 78 ( 1838 )

Daniel, Judge.

The first question raised in this case has been decided by us at the present Term in Smith admr. v. Irwin. We there determined that an endorser of a note, is not entitled under the act of 1827, c. 2, (1 Rev. stat. c. 13, sec. 11,) to be notified that he is looked to for payment before suit can be brought against him.

Upon the second point the defendant offered to shew, that the principal debtor in the two notes, had placed property in the hands of the plaintiff as trustee, to sell and raise money, and pay these two notes, and furthermore that he had sold the property, and raised from the sales money sufficient to discharge them. We are unable to see upon what grounds this evidence could be legally rejected. The plaintiff being the holder of the notes, and at the same time-trustee to sell property, placed in his hands expressly to discharge the notes, it does seem to us, that when he did sell and receive the money, it was immediately a payment of the notes. We think the evidence was improperly rejected, and a,new trial must be granted.

June, 1838.

Per Curiam. . Judgment reversed.