President, Directors & Co. of the Bank of Cape Fear v. Williamson

Supreme Court of North Carolina

President, Directors & Co. of the Bank of Cape Fear v. Williamson

24 N.C. 147

DecidedDecember 15, 1841

StatusPublished

This text of 24 N.C. 147 (President, Directors & Co. of the Bank of Cape Fear v. Williamson) 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

President, Directors & Co. of the Bank of Cape Fear v. Williamson, 24 N.C. 147 (N.C. 1841).

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Opinion

Daniel. J.

Without stopping to remark upon the n.ov-.eityof a motion to amend, without the defendants in the execution having anynotice of it, we will say that in our opinion, the decision of the Judge was correct, in refusing the motion and discharging the rule — and, that too, for the reasons given by him. In 4 Maule & Sel. 328, the Court refused to allow an amendment of a fieri facias, when $he defendant had become a bankrupt before the sale of the goods taken in execution under the writ, because the amendment would prejudice the rights of third persons, namely, the assignee and the other creditors. See also 2 Arch, Prac. K. B. 279. When third persons are not thereby affected, a writ of execution may be amended from a day [149]*149certain to a general return day; but if it will affect the rights of third persons, tire amendment cannot be made. 1 Marshall’s Rep. 399. 5 East 291. The authorities are with the decision of the Judge, and the judgment must be affirmed.

Per Curiam. Judgment affirmed

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Daniel. J.

Without stopping to remark upon the n.ov-.eityof a motion to amend, without the defendants in the execution having anynotice of it, we will say that in our opinion, the decision of the Judge was correct, in refusing the motion and discharging the rule — and, that too, for the reasons given by him. In 4 Maule & Sel. 328, the Court refused to allow an amendment of a fieri facias, when $he defendant had become a bankrupt before the sale of the goods taken in execution under the writ, because the amendment would prejudice the rights of third persons, namely, the assignee and the other creditors. See also 2 Arch, Prac. K. B. 279. When third persons are not thereby affected, a writ of execution may be amended from a day [149]*149certain to a general return day; but if it will affect the rights of third persons, tire amendment cannot be made. 1 Marshall’s Rep. 399. 5 East 291. The authorities are with the decision of the Judge, and the judgment must be affirmed.

Per Curiam. Judgment affirmed

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Bluebook (online)

24 N.C. 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/president-directors-co-of-the-bank-of-cape-fear-v-williamson-nc-1841.