Anderson v. Hawkins, 12 N.C. 298, 1 Dev. 298 (1827)

Dec. 1827 · Supreme Court of North Carolina

12 N.C. 298, 1 Dev. 298

John Anderson & another v. Alfred M. Hunt & Adam Hawkins,

From Franklin.

The acts of 1817 & 1820 (chapters 937 Sa1046) requiring joint suits to be brought against the obligor and endorsers of bonds, &c. do not prevent the Defendants from demanding separate trials, Applications for separate trials, should be made at an early stage in the cause.

An application, made after the cause was called, rejected, as too 1.U .

Debt tipoh the single bond of the Defendant Hunt, payable to the-Defend ant Hawkins, and by him assigned to the Plaintiffs. The action was commenced in the County Court on the 28th of May, 1822. At June Term following, the Defendants jointly pleaded “payment and a set off,” to which there was a replication to the contrary. At the next term, viz. at September 1822, leave was given to the Defendants to amend their pleas, when Hunt pleaded the general issue, and specially, that the bond was given upon a gambling consideration. At the same lime the Defendant Hawkins also pleaded the general issue. The Plaintiffs obtained a verdict in the County Court upon the issues made by the above pleas, from which the Defendant appealed.

, In the Superior Court, before a trial, had at the Spring Term of 1822, the Defendant Hunt filed an affidavit alleging that he had no means of establishing his defence, under the statute against gambling, but from the testimony of his co-defendant, that he had filed a bill in 15íju¡-ly for a discovery, and that the Defendant Hawkins, had not answered it. The cause stood for trial until the Spring Term of 1827, when before Ruppin Judge, after the cause was called, and before the Jury was charged, it was moved on the part of the Defendant Hunt, that the trial should be severed, and the Jury charged with the case, as to one of the Defendants only at a time. This motion was supported on the ground that the act autho-rising makers and indorsers to be sued jointly, was intended for their protection ; that the demands were in their nature reversal, although a joint remedy was given, and the statute was not passed to deprive the Defendants of any advantage, which they had before its enactment. The Counsel avowed the object of the motion, which was to enable the Defendant Hunt, to establish his pica by the testimony of the Defendant Hawkins. His Honor acquiesced in the reasoning of the Defendant’s Counsel, but thought that the motion was made at too late a period, the appearance term, or some early stage in the cause, being the proper time. The motion was therefore disallowed.

The Jury returned a verdict for the Plaintiffs against the Defendant Hunt, and found for the Defendant Hawkins, upon the general issue. Whereupon the Defendant Hunt, appealed.

The cause was submitted without argument, by Badger & W. H. Haywood, for the Plaintiffs, and by Seawell, for the Defendant.

Tati.oii, Chief-Justice.

I am of opinion that the decision of the Superior Court was correct, under the circumstances of the case; and is shewn to be so, by the reasoning of the Judge who tried the cause. To this it may be added, that if the motion had been made at an earlier stage of the cause, it would have enabled the Plaintiff to meet the testimony of Hawkins with counter evidence, if it existed — a preparation he could not make, when the severance was made immediately before 1 * the trial. It is much more likely that justice should be jujy . administered, when the Plaintiff is apprized in time, that one Defendant is severed, in order that he may be a witness, than that the trial should immediately follow the severance. It depends, after all, upon the exercise of a sound discretion in the Court, as to the time when the motion should be made; and though the claim to sever may be founded on right, since the law was introduced for the benefit of drawers and endorsers, yet some limitation in point of time must be settled in practice, as to the time of moving it.

Per Curiam. — J udgment affirmed.