Opinion
(June Term, 1846.)
1. Courts of law in this State only recognize the legal claimant in a suit, and will not permit a set-off to be introduced against one who is alleged to have an equitable assignment of the claim.
2. Where a suit is brought by A. against B. and C., a claim by B. alone against A. will not be allowed to be set-off.
APPEAL from HENDERSON Fall Term, 1846; Bailey, J.
Avery for plaintiff.
No counsel for defendant.
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 indorsement, 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 evidence thus offered, and there were a verdict and judgment for the plaintiff, and the defendant appealed. (339)
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, 4 N.C. 342. For that reason Brown's note was not a set-off in this action.
But if Brown had been the indorsee of this bond, and as such the plaintiff in this action, his promissory note to Gilreath, one of the defendants, would not be a set-off. Bank v. Armstrong, 15 N.C. 519. How can it be told that Brown has not a separate demand against Gilreath, which he has held up to counterbalance his own note to him, and which, possibly, he might lose if Gilreath, 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.
PER CURIAM. No error.
Cited: Walton v. McKesson, 64 N.C. 154; Sloan v. McDowell, 71 N.C. 365.
(340)