Graham v. Allen

2 Nott & McC. 492, 11 S.C.L. 492

Opinion

The opinion of the Court was delivered by

Gantt, J.

On the hearing of this rule, I was of opinion that, as the record had been submitted to a jury, and they had assessed ten cents damages, that the execution *eould not regularly have been taken out for a larger amount, but in this opinion I am satisfied that I erred. A plaintiff is not bound to have the damages assessed before he takes out execution. The language of the Act is, “he may,” and the Act also provides,¹ that when the defendant shall deem it necessary, “he may” compel the plaintiff to submit the measure of damages to a jury. In this case, the question of damages was not submitted to the jury. The defendant did not, by bis plea, deny that an award had been made.¹ He only denied that the bond was his. The Court are unanimous, that the decision of the presiding judge should be set aside, and that the rule be made absolute, against the sheriff.

Hott, Johnson, Rjchaiidson and HugeR, JJ., concurred.

1 2 Mill C. R. 151; Harp. 480; 4 Strob. 358; 7 Stat. 280.

1 Ante, 625.