Arrington v. Horne, 5 N.C. 631, 2 Car. L. Rep. 631 (1816)

July 1816 · Supreme Court of North Carolina

5 N.C. 631, 2 Car. L. Rep. 631

Arrington v. Horne.

Defendant offered, and was permitted to read in evidence the deposition of a Mr. Hardy. It stated, that he had purchased the bond on which the present suit was brought, pending the action, and that this purchase was from the plaintiff, and for a valuable consideration; that this purchase was without writing, and accompanied with the delivery of the attorney’s receipt for the bond; that afterwards deponent, for a valuable consideration, sold the interest in the said bond to a Mr. Purnell, and that he had made an endorsement to that effect, upon the receipt of the attorney; which receipt was produced in Court, endorsed as stated by the deponent. Defendant then offered in evidence the receipt and release of Purnell in discharge of the bond; which release contained on the part of Purnell, a covenant of indemnity to defendant. Defendant also offered in evidence, a settlement of mutual dealings between himself and Purnell, at the time the amount of the bond was taken into consideration and the receipt given. Plaintiff then gave evidence, that at the time he parted with the attorney’s receipt for the bond, that the interest of the bond was sold conditionally, namely, that Hardy was to give surety to a bond that day executed to the plaintiff; and that he had called on Hardy to do so, and that he failed, and soon after became insolvent and was dead. Plaintiff further gave in evidence, that he gave notice to Purnell and defendant before the payment and receipt, but after Purnell’s purchase, that he claimed the interest in the bond. It further appeared in evidence, that the plaintiff had brought suit on the bond given by Hardy, before mentioned, recovered a judgment, and that Hardy was taken in execution and swore out of jail.

This evidence was all given to the jury, subject to the charge of the Court: and the Court directed the jury, that neither the receipt or evidence of settlement amounted to a payment, who found accordingly; and upon motion for a new trial, the same is transmitted by order of thus Court to the Supreme Court.

Seawell, J.

delivered the opinion of the Court:

This may be a hard case, but sitting in a court of law, the plaintiff must prevail. We cannot look into the equitable claim of persons who are, or are not parties, but must dispose of each case as the rules of law direct. Whether, therefore, the plaintiff has parted with the beneficial interest in the bond on which suit is brought so as to enable such assignee in equity to discharge it, must be referred to the rules of a court of equity. According to the rules of law, the right of action still remains in him, and as such must be respected. He having done no act which in law has passed his interest, nor which in law has defeated such right of action, there is nothing by which a court of law can restrain him. The idea of defendant’s paying in good faith to one he supposed authorised to receive, is entirely excluded, from the circumstance of his taking a bond of indemnity. As to him, therefore, he acted with his eyes open, and during the pendency of the present action.

Wherefore, we are all of opinion, that the rule for a new trial, be discharged.