Lackay v. Curtis

• Decision Date: 31 August 1849
• Citation: 6 Ired.Eq. 199,41 N.C. 199
• Court: North Carolina Supreme Court
• Parties: N. P. LACKAY v. JOHN N. CURTIS et al.

6 Ired.Eq. 199

41 N.C. 199

N. P. LACKAY

v.JOHN N. CURTIS et al.

Supreme Court of North Carolina.

August Term, 1849.

Where a suit abated by the death of the defendant, and an execcution issued against the plaintiff for all the costs, at the instance of the heirs of the deceased, the execution was void, and a note given by the plaintiff for the purpose of discharging it, being without consideration, the plaintiff has a right in equity to be relieved against it.

A note, being passed without endorsement, and therefore there being no legal title in the person, to whom it was transferred, he is subject to the same equity as the payee, without regard to the question of notice.

An officer, who merely proceeds to collect an execution put into his hands as an officer, ought not to be made a party to a bill of injunction, and, if he is so, the bill will be dismissed as to him with costs.

Appeal from an interlocutory order, made at the Spring Term 1849, of McDowell Court of Equity, his Honor Judge BAILEY presiding, disallowing a motion to dissolve an injunction theretofore granted.

The bill charged, that the plaintiff, Lackay, had a suit in assumpsit pending in the County Court of McDowell County against one G. W. Bradley, that the said suit abated by the death of the said Bradley, and that execution was issued by the Clerk of the said Court against the plaintiff, Lackay, for the whole amount of the costs of the said suit, being about sixty seven dollars, of which the plaintiff, Lackay, was, in law, only liable for about twelve or thirteen dollars, that being the amount of costs incurred by him: that there being no administration on the estate of the said G. W. Bradley, the execution was issued in the name of “the heirs of the said Bradley:” that the execution was returnable to November Term 1846, and was directed to the defendant, John N. Curtis, who was the sheriff of the said County; that the said sheriff levied on the plaintiff, Lackay's, property, for the amount of the said execution, and advertised it for sale: that on the day of sale, the plaintiff, Lackay, was induced by the representations and persuasions of the said John N. Curtis, to pay to him twenty-five dollars in cash, in part of the said execution and also in discharge of claims, which the said sheriff had against him, to the amount of six or seven dollars, and also to execute to him, in discharge of the balance of the said execution, his note with surety: that the plaintiff,...