#### M. E. TATE v. J. S. PHILLIPS and another.

Practice--Nonsuit.

A plaintiff at any time before verdict may take a nonsuit, except in a case where the defendant has acquired a right to affii’mative relief.

(Graham v. Tate, ante 120, cited and approved.)

Civil ActioN tried at Spring Term, 1877, of Mecklenburg ..Superior Court, before Cloud, J.

The defendant J. S. Phillips executed a promissory note for $1400 to the other defendant, S. B. Alexander, said note •being negptiable and payable at the Bank of Mecklenburg.

Alexander subsequently endorsed and transferred the same •to said Bank, and the Bank assigned to plaintiff. This note -is the subject of this action, and payment is demanded of the defendants for the reason that the Bank refused to pay it.

The defendant Alexander alleged that he endorsed the note for the accommodation of his co-defendant, and that it was delivered to the Bank in renewal' of a pre-existing indebtedness of Phillips, and that it was the property of the Bank and past due at the time of its transfer - to plaintiff, and assigned as collateral security for a debt which the Bank owed to plaintiff".

The defendant Phillips alleged that before this action was commenced, the Bank was indebted.to him in the sum of *127'$1500, cine upon a certificate of deposit given to one Palmer, .and that this defendant is the owner and holder of the same for value, and' demands that this counter-claim shall be applied in discharge of said indebtedness to plaintiff to the .extent of same.

When the case was called, the plaintiff asked leave to suf•fer a nonsuit, which was objected to by defendants but allowed by the Court, and the defendants appealed

Messrs. Wilson §• Son, for plaintiff.

Messrs. Shipp Bailey and W. W. Flemming, for defendants.

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.