62 N.C. 332 | N.C. | 1868
The bill stated that in 1859 the plaintiff borrowed of the defendantfour dollars, and thereupon deposited with him a note upon one Causey for about sixty dollars, and at his request indorsed the said note — it being understood and agreed between them, however, that it was only a security for the repayment of the money borrowed; that afterwards the plaintiff tendered to the defendant such money, and requested him to give up the note, which the defendant refused to do, claiming that he had bought it; that afterwards the defendant had warranted him upon his indorsement, and obtained a judgment against him, (333) and subsequently had him arrested under a ca. sa.; that he gave bond for his appearance under that execution with one W. M. Young as his surety, and that subsequently a judgment had been taken against them for not appearing, etc.
The prayer was for an injunction, and for other relief.
The defendant demurred for want of equity, and specially because Young was not made a party. If the allegations in the bill are true — and the demurrer admits that they are, the plaintiff's equity is to have the bond mentioned in the bill declared to be a pledge or security for the sum of $4, lent by the defendant to the plaintiff, and, upon the payment of that *220 sum, with interest, by the plaintiff to the defendant, to have a perpetual injunction against the fieri facias, which the defendant has sued out against the plaintiff and his surety, Young; and also to have the defendant deliver up the bond to the plaintiff with the defendant's indorsement without recourse; or, if the defendant has collected the amount of the bond out of the obligor, then the plaintiff is entitled to an account.
The objection that the plaintiff's surety, Young, is not, and ought to be, a part plaintiff, can not be sustained.
The demurrer is overruled with costs. The injunction will be continued until the hearing.
PER CURIAM. Demurrer overruled.
(334)
