No: this action is pleadable in bar to it.
Tanton v. Harris, 1 N.C. 124, 1 Mart. 124 (1793)
1793
·
United States Circuit Court for the District of North Carolina
1 N.C. 124, 1 Mart. 124
*Tanton vs. Harris.
Pasch. 2 Car.
CASE. The plaintiff said quod cum the plaintiff had retained the defendant, being an attorney and clerk of the King’s Bench in an action of debt for £. 40. versus &c. And eadem causa delivered him an obligation, in *125which one Johnston cognovit se debere to the now plaintiff and another, &c. salvo custodiend. et ad narr. thereupon and prosequi the same, till judgment, or till the matter should be otherwise determined, and then redeliver it to the plaintiff, and he had paid him his fees for prosecuting the said suit, and predictus tamen Harris fiduciam suam minime curans, sed machinans, &c. impedire quærentem, non prosecutus est placitum predictum, nor did redeliver the said deed, licet sæpius requisit. sed prædictum factum tali loco et die, sine licentiam quærentis, et sine licito warranto, fraudulenter tradidit, to the obligor ad cancellandum. It was objected that this action is brought by one only of the obligees.
Curia. It is well enough, for the delivery was by one only. Judgment for the plaintiff.
Towse.
The defendant is liable to the action of the other obligee.