Lackay v. . Curtis

41 N.C. 199

• Court: Supreme Court of North Carolina
• Decided: August 5, 1849
• Status: Published

Opinion

Pearson, J.

The execution, in favor of “the heirs of G. W. Brady” against Lackay, was void, and the note executed by the plaintiff to the defendant, Curtis, was therefore without consideration, and they have an equity to prevent its collection and to have it surrendered.

The note was transferred to the defendants, Conley arid Brown, without endorsement. The legal title did not pass to them, and they hold it, subject to the same equity that Curtis did, without regard to the question of notice.

The plaintiffs must have a decree for the surrender of the note and costs. As to the cash paid to Curtis, the plaintiffs have their remedy at law, and this Court cannot take jurisdiction.

^ The bill must be dismissed, with costs as to the other defendant, McNeeley. He was acting as constable — a minister of the law — and had no interest whatever in the controversy, and it was wrong to put him to the expense of filing an answer. Edney v. King, 4 Ire. Eq. 474.

Per Curiam.

Ordered to be certified accordingly to the Court below.