Tate v. . Phillips

77 N.C. 126

Opinion

PearsoN, 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 Federal Court under the Act of Bankruptcy is a matter about which w7e have no concern.

Per Curiam. Judgment affirmed.