Opinion
(January Term, 1816.)
Where on a note payable to three persons the suit was brought in the name of the survivor, the court permitted the attorney in fact of the plaintiff of record to dismiss the suit, though it was alleged and offered to be proved that the beneficial interest was really in another person.
THIS suit is brought on a note of the defendant, payable to George M. Leach, M. J. Spaight, and Frances Leach (now the wife of R. B. Jones), of whom the said Frances is survivor.
Hugh Jones, attorney in fact for R. B. Jones and wife, moves for leave to dismiss the suit. This motion is resisted on behalf of the executors of Wood, to whose use the endorsement of the writ states that the suit is instituted, and who, it is alleged, are beneficially interested in the note upon which the suit is brought, and claim a right to collect the money sued for, derived from the facts disclosed in the accompanying affidavits. (343)
The question referred to this Court is whether Hugh Jones, the attorney in fact of R. B. Jones and wife, has a right to dismiss the suit.
It must be acknowledged that adjudications have taken place in England, as well as in this State, wherein courts of law have recognized and protected the rights of the parties beneficially interested in the suit, when the nominal party has attempted to defeat them. Of these cases which have occurred in this State, it is believed that none have been decided under such circumstances as to confer on them the weight of conclusive authorities; for if they had, we should not feel ourselves justified in unsettling the law. And as to the decisions in England, they are in conflict with one which contains such forcible reasoning in favor of the opposite doctrine as to convince us that it is founded on true principles of law, from which other cases have departed under the influence, no doubt, of a desire in judges to administer the real justice of every case, without reflecting on the inconvenience and mischief likely to ensue from confounding the boundaries of law and equity. As the question now occurs for the first time in this Court, we think it right to restore the law of it to its ancient foundations, and to ground ourselves in doing so on Bauerman v. Radenius in 7 Term, 633.
In that case Lord Kenyon observes: "Our courts of law consider only legal rights; our courts of equity have other rules by which they sometimes supersede those legal rules, and in doing so they act most beneficially for the subject. We all know that if courts of law were to take into their consideration all the jurisdiction belonging to courts of equity, many bad consequences would ensue. If the question that has been made in this case had arisen before Sir M. Hale, or Lords Holt or Hardwicke, I believe it never would have occurred to them, sitting in a court of law, that they could have gone out of the record and considered third persons as parties in the cause. It is my wish and my (344) comfort to stand super antiquas vias. I cannot legislate, but by my industry I can discover what our predecessors have done, and I will servilely tread in their footsteps."
The Court are, in this case, all of opinion that Hugh Jones, who claims to be attorney in fact of R. B. Jones and wife, ought, upon verifying his power of attorney, to be allowed to dismiss the suit.
NOTE. — See Arrington v. Horne, post, 435.
Cited: Peace v. Nailing, 16 N.C. 296; Jones v. Gilreath, 28 N.C. 339; S. v. Miller, 33 N.C. 235.