Jones ex rel. Brown v. Gilreath, 28 N.C. 338, 6 Ired. 338 (1846)

June 1846 · Supreme Court of North Carolina

28 N.C. 338, 6 Ired. 338

JOHN JONES TO THE USE OF G. W. BROWN vs. PENIL GILREATH & AL.

Courts of Law in this State only recognize the legal claimant in a suit, and will not permit a set-off to be introduced agaiust one, who is alleged to> have an equitable assignment of the claim.

Where a suit is brought by A. against B. and C., a claim by B. alone against A. will not be allowed tó be set-off.

Appeal from the Superior Court of Law of Henderson County, at the Fall Term, 1846, his Honor Judge Bailey presiding.. 1

This was an action of debt on a bond for $239, given by the defendant to the plaintiff. Pleas : Payment and set-off. On the trial, the defendants proved that the defendant Justice executed the bond as surety for the other defendant. And they offered to prove further, that the plaintiff had assigned the bond, without endorsement, to one Brown, and that this suit was brought for Brown’s-benefit: and that Brown was indebted to. Gilreath, the principal debtor in this action, by promissory note .made by Brown to. Gilreath. But the Court excluded the evL dence thus offered, and there were a verdict and judg. ment for the plaintiff; and the defendant appealed.

Avery, for the plaintiff.

No counsel for the defendants.

Ruffin, C. J.

It was proper enough to receive the evidence that Justice was the surety of Gilreath, so as to give the surety the benefit of the Act of 1826, by having the property of the principal seized and sold before that of the surety. But the evidence was competent to no other purpose ; and all the other evidence was properly rejected. The Courts of this State have steadfastly refused, for a great many years back, to look, upon any equitable principles, to the interests, rights, or duties, of any persons but the parties of record. If the rights of one of the parties, or against one of them, depend on equities, it has been thought safest and' most legal to' leave those persons to their redress in the Court of Equity ; in which the redress will be duly and by a regular proceeding administered. Jones v. Blackledge, 2 No. Car. Law Rep. 457. For that reason, Brown’s note was not a set-off in this action.

But, if Brown had been the endorsee of this bond, and as such the plaintiff in this action, his promissary note to Gilreath, one of the defendants, would not be a set-off. State Bank v. Armstrong, 4 Dev. 519. How can it be told, that Brown has not a separate demand against Gil-reath, which he has held up to counterbalance his own note to him; and which, possibly, he might lose if Gil-reath, instead of settling those separate debts against each other, were at liberty to use the notes to himself in bar of this joint action against him and Justice. The case does not come within the description of the statute, namely, where there are mutual debts subsisting between the parties of the action.

Pee Curiam. J udgment affirmed. ,