Dickens v. Ashe, 3 N.C. 176, 2 Hayw. 176 (1802)

April 1802 · North Carolina Superior Court
3 N.C. 176, 2 Hayw. 176
Dickens vs. Ashe, Administrior de bonis non of Milner

Dickens vs. Ashe, Administrior de bonis non of Milner.

r?~,HE master reported a balance against the defendant; and ex;-reptions were taken, and now came on to lie argued. The case appeared to he this Alston gave two notes to one Swia-ney, who endorsed to the plaintiff, who put them in the hands of Milner, an attorney, to bring suit on ; the master received the evidence -of Alston, to prove that he (Alston) had paid the money to Milner. It was objected that Alston’s testimony was not admissible to prove that lact: if he established the fact, then, ke himself was discharged ; if he did not, Dickens might sue him and recover. Also it was argued, that this demand of Dickens .v.gainst Milner, was a demand at law, more especially if Alston n as a competent witness ; for he could prove by him the receipt of the money by Milner, which would maintain an action for money had and received.

Taylor, Judge,

(after a lengthy argument.) — If I make a mistake in giving judgment, it. caunei be said I nave done so without the assistance of counsel.* Much time has be consumed. The witness is competent to prove the fact he was adduced to prove. If he establishes the fact he was adduced to prove, still *177foe may be sued by Dickens for the contents of the notes j and this recovery against Milner, tffected by hi:; testimony, cannot be given in evidence for him. As to the other point, I admit that sio submission of the parties can i*ive jurisdiction to a court; and consequently, submitting to an answer, will not; yet if the court orders an account to be taken, and a report is made and exceptions taken and set for argument, it is ico late then to say that the demand is merely legal, and to move for « dismission of the bill. The cases which have been read, of dismissing a bill after answer, appear to have been where the answer has been brought on upon bill and answer; no case has been offered of a dismission after s. report made in pursuance of an imtrtecutory decree.

§lnere de hoc»