The President and Directors of the State Bank v. Ambrose Knox & Wm. Martin.
From Pasquotank.
Where an agreement was made that one of two similar suits should abide the event of the other, upon a dispute as to the terms of that agreement, it was held that the decision of the Judge of the Superior Court thereon, was eo elusive, and a judgment entered according to tlie facts ascertained by him, was affirmed.
This was an action' of Assumpsit upon a promissory note, made by one Muse, endorsed by the Defendants for his accommodation, and negotiated to the Plaintiffs. At the Fall Term of the year 1826, this cause, together with that of the same Plaintiffs against Wilson & Parker, (Ante 1 vol. 484,) stood for trial. An affidavit was made by the Attorney of the Plaintiffs for the removal of both causes, and an order entered transmitting them to Gates.
In consequence of an arrangement made by the Counsel on both sides, this cau«e was not removed fo Gates, but it was agreed, as the Defendants contended, that only the suit against Wilson & Parker should be removed, and that this should abide the event of that. No entry was made of this arrangement, but this cause continued in Pasquotank, and was brought forward on the trial docket, with the following entry : “ to await the decision of a case removed to Gates Superior Court,w
*108June, 1829.
Spring Term, 1828, upon affidavit filed, the following rule was made, nunc pro tunc as of Fall Term, 1826. "It is agreed between the Plaintiffs and Defendants At- , $orneySt that whatever decision shall be made in the suit' The State Bank v. Wilson & Parker, removed at this term to Gates for trial, the like decision shall be made in the other suit, The State Bank v. Knox & Martin, and that the order to remove the last mentioned suit be rescinded, and the same is rescinded. And the said last mentioned suit is retained in this Court, to await the decision of the case, The State Bank v. Wilson & Parker
At the Fall Term of 1828, before his honor Judge Strange, the Plaintiffs moved to rescind this rule, and several affidavits were filed in support of, and against the motion. It is thought that it is not necessary to present a statement of them.
Ilis Honor having refused to set aside the rule, the Defendants produced a regularly certified copy of the record in the case of The State Bank v. Wilson & Parker, and moved for judgment in their favour, which being entered, the Plaintiffs appealed.
The case was submitted without argument, by Ruffin, for the Plaintiffs, and Gaston, for the Defendants.
Hall, Judge.
Upon the affidavits offered to the Court at April Term, A. D. 1828, the order for the removal of this suit to Gates Superior Court for trial, was rescinded; and the entry of the agreement that it should await the decision of the suit, The State Bank v. Wilson et al. removed from Pasquotank to Gates Superior Court, was made as of April Term, A. D. 1826, that being the term at which the agreement was entered into, as appears from affidavits then offered to the Court, and of which that Court was the only competent judge.
No objeevion appears to have been made to these entries at that time. At the Supreme Court in June, 1828, where the suit, The State Bank v. Wilson et al. had been *109¿apried h> appeal from Gates Sup’ :or C<r judgment was give1) Tor the Dofoudams. Altee ward at October Term of Pasquotank Superior Court, a motion was made in this suit, to rescind the entry directing it to await the decision to be made in the suit. The State Bank v. Wilson et al. This was refused by the Court, and the same judgment was entered in if, which, had been given in the suit of The State Bank v. Wilson et al. In this I think the Judge acted correctly. It is to be observed, that the last mentioned motion was not made, until the judgment of this Court in the suit against Wilson was known, and then to have permitted the motion to prevail, would have been to permit the Plaintiff*to try his fortune the second time, contrary to his agreement. I say agreement, because the Superior Court, judging from the affidavits, considered that there was one.
Per Curiam. — Let the judgment below he affirmed.