Opinion
(June Term, 1840.)
If a plaintiff in a suit at law be taxed with more costs than he is legally bound to pay his remedy is by a motion in the court of law for a retaxation of the costs, and he cannot, after neglecting to avail himself of this remedy, have relief in equity.
If an administrator be sued upon notes and bonds of his intestate pending an action previously commenced against him upon a covenant of his intestate, he should plead the pendency of the action on the covenant, and that the assets would be liable in the first instance to the recovery in that action, if effected, and no assets ultra. And if he neglects to avail himself of such defense, he cannot afterwards have relief in equity.
THE bill stated that David Dickey brought an action of covenant against the plaintiffs as the representatives of Anthony Harman, deceased; and in his declaration assigned five several and distinct breaches of the covenant declared on; that he afterwards died, and Goodbread, as his administrator, revived and carried on the suit; that Dickey first, and then his administrator, summoned many witnesses to establish and support the several breaches of covenant assigned in the declaration; that the cause remained in the courts of law for many years; and at length Dickey's administrator established but one of the several breaches set out in his declaration, and had a verdict and (10) judgment for the damages assessed on that and full cost, which included the witnesses summoned on the other breaches, as well as on the one upon which he prevailed. The bill then stated that pending the action by Dickey's administrator all the assets of Harman had been exhausted by actions brought on notes and bonds against his representatives. The bill prayed an injunction against the judgment, which the judge granted. The answer of Dickey's administrator came in, denying some of the facts stated in the bill, and insisted that the plaintiffs might have had relief at law by proper pleading if the facts stated in the bill were true. On a motion in the Superior Court to dissolve the injunction the court decreed accordingly, and the plaintiffs appealed.
No counsel appeared for either party in this Court.
We are of the same opinion as the judge was who decreed a dissolution of the injunction. We think the injunction at first was improvidently granted. If the plaintiffs were taxed with more costs in the suit at law than they were legally bound to pay, their remedy was by a motion in the court of law for a retaxation of the bill of cost. If the plaintiffs, as the representatives of Harman, were sued on notes and bonds subsequently to the commencement of Dickey's action on the covenant, they should have pleaded the pendency of that action, and that the assets would be liable in the first instance to Dickey's recovery, if effected; and no assets ultra. Where a party has a plain remedy at law and neglects to avail himself of it, he has no right to ask relief in equity. The decree must, we think, be affirmed with costs.
PER CURIAM. Decree accordingly.
Cited: Champion v. Miller, 55 N.C. 196.
(11)