Grier Co. v. . Comb's

Superior Court of North Carolina

Grier Co. v. . Comb's

1 N.C. 91

DecidedJuly 5, 1798

StatusPublished

This text of 1 N.C. 91 (Grier Co. v. . Comb's) is published on Counsel Stack Legal Research, covering Superior 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

Grier Co. v. . Comb's, 1 N.C. 91 (N.C. Ct. App. 1798).

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Opinion

By the Court: When an executor or administrator has pleaded in chief to an action, having assets, both where the suit is commenced and the plea is pleaded, he cannot afterwards voluntarily pay them away; nor ought he to suffer other creditors to obtain judgments that will deprive him of them.

He can prefer one creditor to another, only before an action is commenced by either; or, when actions are commenced, by giving a judgment to one, before he pleads to the other's suit. After that period, he has no discretion, because the law prefers that creditor who first obtains a plea, provided he afterwards recovers judgment.

The allowance of this motion would be, in effect, to establish a contrary doctrine: namely, that though an executor had assets at the commencement of the action, and also when he pleaded, yet at any distance of time afterwards he might prefer other creditors, by giving them judgments, though possibly their debts were not due when he pleaded to the first action.

Motion denied.

NOTE. — See Woolford v. Simpson, 3 N.C. 132, and the cases referred to in the note.

Cited: Bryan v. Miller, 32 N.C. 130. (92)

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By the Court: When an executor or administrator has pleaded in chief to an action, having assets, both where the suit is commenced and the plea is pleaded, he cannot afterwards voluntarily pay them away; nor ought he to suffer other creditors to obtain judgments that will deprive him of them.

He can prefer one creditor to another, only before an action is commenced by either; or, when actions are commenced, by giving a judgment to one, before he pleads to the other's suit. After that period, he has no discretion, because the law prefers that creditor who first obtains a plea, provided he afterwards recovers judgment.

The allowance of this motion would be, in effect, to establish a contrary doctrine: namely, that though an executor had assets at the commencement of the action, and also when he pleaded, yet at any distance of time afterwards he might prefer other creditors, by giving them judgments, though possibly their debts were not due when he pleaded to the first action.

Motion denied.

NOTE. — See Woolford v. Simpson, 3 N.C. 132, and the cases referred to in the note.

Cited: Bryan v. Miller, 32 N.C. 130. (92)

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Bluebook (online)

1 N.C. 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grier-co-v-combs-ncsuperct-1798.