While there are discrepancies in the statement of facts in the complaint and answer, accepting those set out in the answer as correct, the plaintiff is entitled to an account and to a reference. The plaintiff remains liable upon the note held by the bank as well as to any other outstanding (202) liabilities of the firm, and has a clear right to enforce the execution of the admitted trust upon which the collaterals in possession of the bank are held, and to compel their appropriation to the partnership debts as a means of exonerating the plaintiff. This equity is not impaired by any provision as to the disposition of the surplus, should there be such, whether it belongs to Hardin for his own use or is to be distributed as if no assignment were made to him.
"Any matter which has a bearing upon the right of the plaintiff to a decree for an account," remarks PEARSON, J., laying down the rule of practice, "comes up at the hearing when the decree for an account is asked; but a matter of charge, that is, what does or does not form a part of the fund or of discharge, cannot then be gone into, but comes up regularly by exception to the report." And he adds: "Where the suit is for an account, all the evidence necessary to be read at the hearing is that which proves the defendant to be an accounting party, and then the decree to accountfollows of course." Dozier v. Sprouse, 54 N.C. 152. Other cases are to the same effect. Hairston v. Hairston, 55 N.C. 123; Railroad Company v.Morrison, 82 N.C. 141.
In the present case the admissions in the answer show a liability in the defendant Bank to an account of the fund and fully warrant the order of reference.
We renewedly call attention to the distinction between an order of reference following a decree quod computet, under the former equity practice, and such order made under the Code, pointed out in the *Page 168 case of Barrett v. Henry, 85 N.C. 321, the recognition of which may obviate errors into which parties not observing the difference are liable to fall.
There is no error, and this will be certified that the cause may be proceeded with in this court below.
No error. Affirmed.
Cited: Cotton Mills v. Maslin, 200 N.C. 329.
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