Tate v. . Phillips
Supreme Court of North Carolina
Civil ActioN tried at Spring Term, 1877, of Mecklenburg ..Superior Court, before Cloud, J. The defendant J. S. Phillips executed a promissory note for $1400 to the other defendant, S. B. Alexander, said note •being negptiable and payable at the Bank of Mecklenburg. Alexander subsequently endorsed and transferred the same •to said Bank, and the Bank assigned to plaintiff.
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Civil ActioN tried at Spring Term, 1877, of Mecklenburg ..Superior Court, before Cloud, J. The defendant J. S. Phillips executed a promissory note for $1400 to the other defendant, S. B. Alexander, said note •being negptiable and payable at the Bank of Mecklenburg. Alexander subsequently endorsed and transferred the same •to said Bank, and the Bank assigned to plaintiff. This note -is the subject of this action, and payment is demanded of the defendants for the reason that the Bank refused to pay it. The defendant Alexander alleged that he endorsed the note for the accommodation of his…
1Opinion of the CourtPearsoN, C. J.
This case is governed by Graham v. Tate .ante, 120.
A plaintiff may at any time before verdict pay the cost and take a nonsuit except in a cáse where the defendant has .acquired a right to affirmative relief.
The defendant in our case under the statute had no more •than a defensive right against Tate, i. e. to bar the action by a set off of the notes of the Bank, but he could not claim of the plaintiff judgment for the excess.
So according to the course of the Court the plaintiff had a right to pay up the cost and walk out of Court.
The suggestion that he intends to take proceedings in the…
2Cited by4 opinions
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- Purnell v. Vaughan, Barnes & Co.Supreme Court of North Carolina · 1879
- Brown v. . KingSupreme Court of North Carolina · 1890