Mann v. . Blount

65 N.C. 99

• Court: Supreme Court of North Carolina
• Decided: January 5, 1871
• Status: Published

Opinion

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 this action, ‘c lawful money of the United States” in payment of a judgment obtained upon a debt made to the Bank — having refused to accept the bills of the Bank of Washington in satisfaction of said judgment.

The Act of 1868-’9, ch. 77, declares, “ That an Act entitled an act to make bank bills a set off, ratified the twenty second day of August, A. D. 1868, be so amended as to apply to judgments and executions which may have been obtained on any debt due any of the banks mentioned in the aforesaid act.”

These words are broad enough to embrace the case under consideration. But it is contended that the corporation, known as the Bank of Washington, has had no legal existence since 1867, and that the debt upon which the execution, which is now the subject of controversy is founded, is not due to the Bank of Washington; since all the property of said Bank has been assigned to the defendant, for the benefit of such of the creditors of the Bank as proved their debts.

We are unable to perceive how these facts can affect either the justice or the law of the case.

We are of opinion that the assignee and all who claim under him, have no higher nor better rights than the Bank itself would have had. The assignee is simply winding up the affairs of the Bank, and so far as its debtors are concerned, it can make no difference whether the stockholders or the creditors are to be benefited.

We have thought proper to say this much upon the merits of the case, but we think that the present plaintiff has. mistaken his remedy.

A suit in Court is not ended by the rendition of a judgment, but it is a pending suit until the judgment is satisfied.

Therefore, the relief to which the plaintiff in this action is entitled may be obtained by a rule upon the plaintiff in the execution which is sought to be enjoined, founded upon proper affidavits, requiring Mm to show cause why he shall not accept the bills of the Bank of Washington, in payment of the debt and have satisfaction of the judgment entered of record. A notice of the rule upon the Sheriff who has the execution in hand will operate as a supersedias.

Thus the present plaintiff can obtain relief in the cause of Blount v. Adams, et al, which is still pending; and it is a rule of Courts of Equity not to entertain a bill which seeks no other relief than that which can be had by orders in a cause then pending. Rogers v. Bolt, Phil. Eq. 108. Mason v. Miles, 63 N. C. 564. Council v. Rivers, at this term.

The judgment of the Superior Court must be reversed, and the action dismissed.

Per Curiam. Judgment reversed.