Granville County NcArchives Court.....James Stamper, Robert W. Burton V. 1849
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Connie Ardrey n/a January 30, 2010, 12:19 pm

Source: Nc Reports
Written: 1849

Robert W. Burton & Al vs. James Stamper & Al, 1849

Examining a party in a suit in Equity, as a witness, is an equitable release 
to him, as to the matter to which he is examined.

If the party examined be the one primarily liable, and the other defendant 
only secondarily, the plaintiff gives up his claim both by the examination of 
the former.

Cause removed from the Court of Equity of Granville County, at the Spring Term 
1849.

The bill alleges, that the defendant Joseph J. Williams held two notes upon 
one Burroughs, payable to one Jordan, and endorsed by him in blank; one for 
about $800, and the other for about $331, in trust for the plaintiffs, the 
notes having been delivered to him upon such trust by William Williams, the 
grand-father of the plaintiffs. After the death of William Williams, about the 
year 1840, the said Joseph J. Williams, who was the executor of the said 
William, unmindful of the trust reposed in him, and regardless of the rights 
of the plaintiff, sold and assigned the notes to Robert Stamper, the intestate 
of the two defendants, James and George Stamper, in satisfaction and discharge 
of a debt due to the said Robert by the said Joseph; and that the said Robert, 
at the time of the transfer, had notice of the trust, and afterwards collected 
the amount of the notes. The bill further alleges, in aid of the plaintiff's 
rights, if necessary, that William Williams, by his will, after some specific 
legacies, bequeathed the residue of his estate to the other defendant 
Elizabeth Williams, who has assigned all the interest she may have in the 
notes or money collected to the plaintiffs.

Joseph J. Williams is alleged to be insolvent; and the prayer is, that the 
defendants, James and George Stamper, be decreed to pay to the plaintiffs the 
money collected on the notes by their intestate.

The answer of Elizabeth Williams admits the transfer of the notes, or her 
interest therein to the plaintiffs. The bill was taken pro confesso against 
Joseph J. Williams.

The defendants James and George Stamper admit, that the notes were transferred 
to their intestate, and that he collected them; but deny, that the transfer 
was made to him with notice of the trust; and insist that he was a bona fide 
purchaser for valuable consideration without notice.

The plaintiffs obtained leave, and took the deposition of the defendant, 
Joseph J. Williams, which establishes the trust, and proves that Robert 
Stamper had notice, at the time the notes were transferred to him.

Badger, R.B. Gilliam and Graham, for the plaintiffs
J.H. Bryan for the defendants

[NC Supreme Court]
Pearson, J. It is clear, that Joseph J. Williams, the trustee, is primarily 
liable for the breach of trust, and the defendants James and George Stamper 
are only liable secondarily; for, the decree, if made for the plaintiffs, 
ought and must be to recover the amount from Joseph J. Williams in the first 
place, and in the event it cannot be made out to him, then to recover from the 
defendants James and George Stamper.

This case is fully decided by that of Lewis v. Owen & Lewis, 1 Ired. Eq. 290; 
where it is held, "examining a party is an Equitable release to him, as to the 
matter, to which he is examined. If the party examined be the one primarily 
liable and the other defendant only secondarily, the plaintiff gives up his 
claim against both by the examination of the former."

The bill must be dismissed with costs, except as to the defendant Joseph J. 
Williams.

Per Curiam
Decree accordingly

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