Mann v. Blount

• Decision Date: 31 January 1871
• Citation: Mann v. Blount, 65 N.C. 99 (N.C. 1871)
• Court: North Carolina Supreme Court
• Parties: SAMUEL M. MANN, Ex'r., v. JOHN G. BLOUNT, and another.

65 N.C. 99

SAMUEL M. MANN, Ex'r.,

v.JOHN G. BLOUNT, and another.

Supreme Court of North Carolina.

January Term, 1871.

The proper mode of obtaining relief under the act of 1868-'9, which makes bank bills a set off against judgments and executions already obtained, is by a rule upon the plaintiff in the judgment or execution, which is sought to be enjoined, founded upon proper affidavits, requiring him to show cause why he shall not accept the bills of the bank in payment of the debt, and have satisfaction of the judgment entered of record.And a notice of the rule served upon the Sheriff, who has the execution in hand, will operate as a supersedias.

It is the rule of a Court of Equity, or of any other Court which proceeds upon the same principles, not to entertain a bill or action, which seeks no other relief than that which can be had by orders in a cause then pending.

The cases of Rogers v. Holt,Phil. Eq. 108, andMason v. Miles,63 N. C. Rep. 564, cited and approved.

The person to whom the effects of a bank have been assigned for the purpose of winding up its affairs, and every person claiming under him, has no higher or better rights than the bank itself would have had.

This was a civil action in which the plaintiff applied for an order for an injunction, tried before his Honor Jones, J., at the last term of HYDE Superior Court.

The complaint alleged in substance that the present defendant, John G. Blount, as assignee of the Bank of Washington, had in 1869 obtained a judgment against one Adams, and himself as executor of Marcus Swindell, that after a payment of a part of it, the plaintiff had obtained bank bills of the Bank of Washington, and tendered them in payment of the residue of the judgment, an execution on which had been issued and was then in the hands of the Sheriff, and that the attorney of the plaintiff in the execution and the sheriff had refused to receive it.An order for a preliminary injunction was obtained on the 7th March, 1870, and at the Fall Term, 1870, of the Superior Court, the defendant filed an answer, in which it was stated, among other grounds of defence, that after the assignment of the effects of the Bank of Washington to the defendant, the judgment was obtained, and that the money due thereon did not belong to the Bank of Washington, nor to the stockholders thereof, but to certain creditors of the said bank, whose claims had been established and settled by the judgment and decree of the Superior Court of Beaufort County.It was further stated that the corporation known as the Bank of Washington had had no legal existence since the year 1867.Upon his answer, the defendant Blount moved for a dissolution of the injunction, which was refused by the Court, and he appealed.

Warren & Carter for the defendant .

Battle & Sons for the plaintiff.

SETTLE, J.

The defendant as assignee of the Bank of Washington, which went into liquidation in 1867, is seeking to collect of the plaintiff in...