Hulbert v. Douglas

• Decision Date: 28 February 1886
• Citation: 94 N.C. 128
• Court: North Carolina Supreme Court
• Parties: ALVIN HULBERT v. R. M. DOUGLAS and T. B. KEOGH.

94 N.C. 128

ALVIN HULBERT

v.R. M. DOUGLAS and T. B. KEOGH.

Supreme Court of North Carolina.

February Term, 1886.

This was the defendant Keogh's appeal in the foregoing case.

The facts are the same as in the foregoing case.

Mr. John Devereux, Jr., for the plaintiff .

Mr. W. W. Fuller, for the defendant .

SMITH, C. J.

It is conceded that the appellant, when owner of the note and its coupons, subject to the lien for the money advanced and for which it was held as collateral security, received from the maker $4,000 as a part payment, under an agreement that it should be entered as a credit, and that, without a disclosure of the fact, the note was endorsed for its full value, before any one of the four attached coupons remaining had matured. The first coupon had been cut off and was retained by the appellant. The endorsement clearly rendered him liable as such, for all appearing to be due upon the face of the assigned papers, as if no payment had been made by the principal debtor, and he has no ground of complaint for the judgment rendered against him.

The controversies between the defendants, growing out of their mutual dealings, outside of those connected with the note, are not before us in the present appeal, and whatever they may be, the plaintiff is entitled to recover his money without awaiting their adjustment. Nor, in our opinion, can they be rightly introduced in the present action, as they are wholly foreign to its purpose, and must be settled in another suit between the defendants themselves. The practice, sanctioned by the Code, does not go so far as to permit the introduction of questions in dispute among the defendants, unless they arise out of the subject of the action as set out in the complaint, and have such relation to the plaintiff's claim, as that their adjustment is necessary to a full and final determination of the cause. Hughes v. Boone, 81 N. C., 204.

The rule in Chancery, to which the Code practice is intended to be assimilated in this feature, is thus clearly stated by Chancellor Walworth, in his opinion in Elliott v. Pell, 1 Paige, (N. Y.) 253: “It is the settled law of this Court, that a decree between co-defendants, grounded upon the pleadings and proofs between the complainant and the defendants, may be made, and it is the constant practice of the Court to do so, to prevent multiplicity of suits,” citing cases; “but such decree between co-defendants, to be binding upon them, must be founded upon, and...