Cox v. . Buie

Supreme Court of North Carolina

Cox v. . Buie

34 N.C. 139

DecidedJune 5, 1851

StatusPublished

This text of 34 N.C. 139 (Cox v. . Buie) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cox v. . Buie, 34 N.C. 139 (N.C. 1851).

Pincite

Opinion

Ruffin, C. J.

If the objection were open alter a full defence on the merits, it would not avail the defendant; for there is nothing in it! The Statute does not provide for or intend that a copy of the petition should be served. The purpose was to give a summary remedy on motion at the same Term at which the petition was filed. But to prevent surprise, it requires the notice in writing of the intention to file the petition. That was just the course in the Court of Chancery, before the Statute required the master to send a copy of the bill with the subpoena. Before that, the plaintiff" sued out his subpoena, often before his bill was filed ; and the defendant, being served with the process, bought the bill for himself, if he wished one. In respect to petitions of this kind, we believe a practice has grown up of serving a copy of the petition, in order to obviate possible objections for omissions in the notice. Though unnecessary, it may thus be convenient tq the petitioner to serve the copy. That is at his own expense, and can by no possibility do any wrong to the defendant.

Per. Curiam. Judgment affirmed.

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Ruffin, C. J.

If the objection were open alter a full defence on the merits, it would not avail the defendant; for there is nothing in it! The Statute does not provide for or intend that a copy of the petition should be served. The purpose was to give a summary remedy on motion at the same Term at which the petition was filed. But to prevent surprise, it requires the notice in writing of the intention to file the petition. That was just the course in the Court of Chancery, before the Statute required the master to send a copy of the bill with the subpoena. Before that, the plaintiff" sued out his subpoena, often before his bill was filed ; and the defendant, being served with the process, bought the bill for himself, if he wished one. In respect to petitions of this kind, we believe a practice has grown up of serving a copy of the petition, in order to obviate possible objections for omissions in the notice. Though unnecessary, it may thus be convenient tq the petitioner to serve the copy. That is at his own expense, and can by no possibility do any wrong to the defendant.

Per. Curiam. Judgment affirmed.

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Bluebook (online)

34 N.C. 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-buie-nc-1851.