Clark v. Banner
| Decision Date | 31 December 1837 |
| Court | North Carolina Supreme Court |
| Parties | SAMUEL CLARK v. CHARLES BANNER, et al. |
OPINION TEXT STARTS HERE
A plaintiff who seeks the aid of a Court of Equity to obtain satisfaction of his judgment at law, ought not only to establish his debt there, but sue out execution.
Whether a return of nulla bona on such execution be necessary, Qu?
THE bill charged that the plaintiff, as the surety of the defendant Charles in his official bond as sheriff of Stokes county, had been compelled to pay large sums of money for the default of his principal: that he had obtained a judgment against his principal for the sum of two hundred and thirteen dollars and twenty-seven cents, part of such payments; and that a large balance still remained due him on account thereof, for which he had obtained no judgment: that the defendant Charles, to defeat the plaintiff in obtaining satisfaction of his debt, had conveyed to his sons, Constantine and John, also defendants, all his property, except one mare, which he had conveyed to the plaintiff; and that the defendant Constantine had brought an action at law against the plaintiff for the value of this mare. The plaintiff insisted, that all the conveyances by the defendant Charles to his sons were fraudulent; and prayed a discovery and account of the property of Charles in the hands of the other defendants; and for satisfaction of his debt out of the property or money.
The defendants answered, and denied all the allegations of the bill. Proofs were taken, and the cause transred to the Supreme Court for hearing.
Waddell, for the plaintiff .
J. T. Morehead and Boyden, for the defendants .
DANIEL, Judge, after stating the case, proceeded:
The defendants might and ought to have demurred to the bill. The plaintiff, although he obtained a judgment at law for part only of his demand against Charles Banner, never, as we can discover, took out any execution to obtain satisfaction at law, even for that portion of it which he had reduced to a judgment. The plaintiff should have obtained a judgment at law for his entire demand, and then issued an execution on the same. Because, until execution, the plaintiff has no lien on the property as to which he asks the aid of this Court for a discovery and satisfaction. In Angel v. Draper, 1 Vern. 399, the defendant had come to the possession of the goods of the debtor in a fraudulent manner, but notwithstanding, upon the defendant's demurring because the plaintiff ...
To continue reading
Request your trial