Casey v. Giles

Full title: WILLIAM CASEY, et. al. v . HENRY GILES

Court: Supreme Court of North Carolina

Date published: Dec 1, 1834

18 N.C. 1 (N.C. 1834)

Opinion

(December Term, 1834.)

An action of debt may be maintained upon an injunction bond, notwithstanding the summary remedy given by the acts of 1785, ( Rev. ch. 233, Sect. 2.) and 1810, ( Rev. ch. 794.)

THIS was an action of DEBT in which the plaintiff declared upon an injunction bond drawn according to the act of 1800, ( Rev. ch. 551). The execution of the bond was admitted; as was the fact that the injunction had been dissolved before this action was brought. His honour Judge SEAWELL, at Rowan, on the last Circuit, being of opinion that the action could not be maintained, but that the only remedy was by motion, as directed by the acts of 1785, ( Rev. ch. 233, sec. 2), and 1810, ( Rev. ch. 794), the plaintiff submitted to a nonsuit and appealed.

Pearson, for the plaintiff.

Winston, contra.

RUFFIN, Chief-Justice.

— Whether the bond be regarded as an obligation in pais, or of record, debts is the appropriate remedy at common law. That action is not expressly abolished by the acts which give the summary remedy; nor, we think, by any reasonable inference. Judgments on notice and motion are given on many official bonds, as those of sheriffs and clerks; but that method has never been considered as excluding the old actions. The statutes have not in view the benefit of the debtors, when a summary proceeding is authorised against them; but it is given in aid of the creditor, and as suppletory to his remedy at common law. Hence the creditor has an election, unless, as in the case of bail, he should by proceeding in a particular way, deprive the other party of a defence, which the law designed for him at all events. The creditor may reasonably prefer bringing the action of debt, because he therein gets bail, which, in some instances, may be a better security than even a judgment instanter, against the party himself; and the legislature did not intend to deprive the creditor of any advantage. For these reasons the Court is of opinion, that the Superior Court erred, and the judgment must therefore be reversed, and a venire de novo ordered.

PER CURIAM. Judgment reversed.