Ousby v. . Neal

5 S.E. 901, 99 N.C. 146

• Court: Supreme Court of North Carolina
• Decided: February 5, 1888
• Status: Published

Opinion

Davis, J.,

(after stating the case). Chapter 401 of the Acts of 1885 provides “ that in an application for an injunction to enjoin a trespass on land, it shall not be necessary to allege the insolvency of the defendant when the trespass complained of is continuous in its nature, or is the cutting or destruction of timber trees.”

The purpose of this action is to recover damages for the alleged trespasses mentioned in the complaint, and to perpetually enjoin the defendants from trespassing on the lands described.

It is insisted by the plaintiffs that it was intended by the Act just recited that in trespasses of the character complained of the injunction should not only issue without any allegation of the insolvency of the defendant, but should be continued to the hearing.

While the statute relieves plaintiffs of the necessity of alleging the insolvency of defendants in trespasses of the class named, we apprehend it was not the purpose of the law to limit the power of the Court in the exercise of its discretion in making such orders as will protect the rights of all parties in respect to the subject matter about which the litigation may be pending.

The rulings of the Court in Lewis v. Lamber Co., ante, 11, following the decision in Lamber Co. v. Wallace, 93 N. C., 22, are applicable to and govern this case.

The defendants should be required to execute such reasonable bond, with sufficient security, as the Court may deem proper, payable to the plaintiffs, conditioned to secure to them such damages as the Court may adjudge in their favor upon the determination of the action, an,d in the event of failure to give such bond the Court may make such order or orders in the cause by the appointment of a receiver, or otherwise, as will protect the rights of the parties pending the litigation.

This will be certified to the Superior Court, that the parties, if they so desire, may proceed in accordance with this opinion.

Modified and remanded.