Reeves v. Adams, 17 N.C. 192, 2 Dev. Eq. 192 (1831)

Dec. 1831 · Supreme Court of North Carolina

17 N.C. 192, 2 Dev. Eq. 192

James Reeves v. Meredith Adams & Anderson Blackwood.

Arbitrators, officers of corporations and solicitors who have aided their Clients to commit frauds, may be made defendants. But the rule is different as to a mere witness, who has no interest in the cause, and against whom no relief can be given. If he answers, the bill, at the hearing, will be dismissed as to him with costs.

The plaintiff in his bill, which was filed in Orange in 1826, sought to set aside the sale of a lot in the town of Hillsborough, made by the plaintiff to the defendant Mams, under circumstances of gross fraud. The relief as to Mams was clear, and the only doubt was, whether the defendant Blackwood was not unnecessarily made a party. As to him, the facts were, that he went with Mams to the house of the plaintiff, at the time when the latter was made drunk by the former, and when the deed for the lot was signed, which was witnessed by Blackwood, who endeavored to get a part of the purchase money to secure a debt due another person, in which he failed.

Blackwood submitted to answer, and at the hearing it was moved by Nash and Winston, that the hill should be dismissed as to him, urging that he had improperly been made a party ; and for this was cited McNamara, v. Williams, (6 Ves. 143). Plummer v. Muy, (1 Ves. sen. 426.)

Ruffin and W. H. Haywood, for the plaintiff

contended, 1st, That Blackwood should have demurred if there was any tiling in the objection ; and 2d. That he was properly made a party ; and for these positions they cited Lingood v. Croncher (2 .dtk. 396). Chicot v. Lequesne (2 Ves. sen. 315). MUford 152. Sennet v, Vadc{Z3tk. 327). Bowles v. Stewart (1 Sch.Sp Lef. 227). Cooper Eq. Pleading 42 & 478. Plummer v. May (1 Ves. sen. 426). Confe-so» v. Ellison (2 Bro. C. C. 252).

The cause was held under advisement several terms.

The opinion of the court was delivered by

Hard, Judge.

-It appears to be a general rule, that .a person who is merely a witness shall-not be made a party defendant $ because having no interest in the cause, no decree can be made against him,-and because the party may have the full benefit of his testimony, by examining him as a witness. (Plummer v. May, 1 Ves. sen. 426. Fenton v. Hughes, 7 Ves. 287. McNamara v. Williams, 6 Ves. 143).

But to this rule there appear to be some exceptions* Arbitrators have been suffered to be made defendants. (Lingood v. Croucher, 2 Atk. 396. Chicot v. Lequesne, 2 Ves. sen. 315). Clerks of corporations may also be made defendants, for the sake of discoveries, because the answers of corporations are not upon oath, and are therefore not evidence. (Wyche v. Meal, 3 P. Wms. 310. Moodalay v. Morton, 1 Br. C. R. 469. Dummer v. Chipenham, 14 Ves. 251). And Lord Redesdale has decided, that a solicitor, assisting his client in obtaining a fraudulent release, was properly made defendant, and liable for costs, if the principal was insolvent. (Bowles v. Stewart, 1 Sch. & Lef. 227).

In the present case, the defendant Blackwood appears to have no interest in the cause, and no decree can be entered against" him. It was therefore unnecessary .to make him a party. The plaintiff might have had the benefit of his testimony, without doing so. For these reasons, I am of opinion that he should be allowed his .costs.

Per Curiam. — Dismiss the bill as to Blackwood with costs.

EQUITY CASES ARGUED AND DETERMINED IN THE SUPREME COURT OE DECEMBER TERM, 1832.