
    James Morris v. John Peay.
    
      Tried before His Honor, Judge Martin, at Chester— • Fall Term, 1882: Who made tlie following report.
    
    It was admitted on all hands at the outset of this case,-that Cloud & Boyd were the real plaintiffs. — The process was on a note, which was not negotiable, given by defendant to plaintiff. There were little doubts in the .first instance, whether Boyd & Cloud had come into the possession of this note properly, and when they presented it to defendant for ment, he stated that as an objection. Boyd <& Cloud told defendant they did not claim all the note, only a part of it was due them, but when they collected the -amount, they were to account with Morris for the excess. The defendant then.- requested Boyd «fe Cloud to pay Morris the amount of the note and he would, settle it with them. In consequence of this request, Cloud «fe Boyd gave Morris credit for the whole he owed them and paid him the balance of the note.— Having commenced this suit, the defendant procured a release of the action from Morris, in whose name the process was instituted, and on the trial insisted that there was no case in Court, and that it should be stricken from the docket. I refused the motion, and as there was no other defence decreed for the plaintiff.
    The-case of McDaniel v. Nicholson, 2 Const. Court Rep. 844, will be found on examination not to have decided this question. Although Mr. Justice Grimke says something on the point, it was not before the Court, nor did the Court express any opinion on the question.
    I had some difficulty in mymindin getting over the cáse of McElwee <& House, in Bailey, in order to reach the justice of this case, but no more is said there, than that a third person, not a party to the record, shall not prevent a discontinuance. But it does not necessarily follow that one who is a party, and who has transferred his equity, shall be allowed to do so, fraudulently.
    piainfiff)"°“ hS ws ioSedm,shau f ¥ htd®£e“¿, 6 ieal
    
      In Taylor v. Holstein, at the last Court of Appeals, it was held that a receipt in full from Taybr who had transferred the note to McCarty, and for whose benefit that suit was brought in Taylor’s name, should not defeat the action, the payment, if any, having been made after the defendant had notice, that McCarty was the owner of the note. If a receipt in full be not evidence in the trial on its merits, I cannot suppose that a nominal plaintiff who had transferred the note for a full price, shall be allowed to discontinue the action, particularly when, as in this case, it was so manifest that there was a combination to perpetrate a fraud on the real Iona fide holders of the note.
    [Signed,] \
    
    W. D. MARTIN.
    The defendant moved the Court to set aside the decree, and for a non suit, on the following grounds :
    1. Because the Circuit Court had no power to prevent the plaintiff from discontinuing his action.
    
      2. Because the plaintiff was a minor, and therefore not authorized to bring an action without a guardian, or procheim ami.
    
    Clarke, for the motion.
    Cited, 1 Const. Rep. 344. I Bailey, 108.
    Gregg, contra.
   Johnson J.

The ease of Holstein v. Taylor, at the last Term was decided upon mature consideration. It is directly in point and must control this case.

Motion dismissed.

G’Neall J. concurred.

Harper J. absent.  