Casey v. . Giles

18 N.C. 1

• Court: Supreme Court of North Carolina
• Decided: December 5, 1834
• Status: Published

Opinion

Ruffin, Chief-Justice.

— Whether the bond be regarded as an obligation in pais, or of record, debt 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 Ctjriam. Judgment reversed.