Smith v. . Coble

62 N.C. 332

• Court: Supreme Court of North Carolina
• Decided: January 5, 1868
• Status: Published

Opinion

Reade, J.

If the allegations in the bill are true, — and the ■ demurrer admits that they are, the plaintiff’s equity is, to have the bond mentioned in the bill declared to be a pledge or security for the sum of $4, lent by the defendant to the plaintiff, and, upon the payment of that sum with interest by the plaintiff to the defendant, to have a perpetual injunction against the fieri facias which the defendant has sued out against the plaintiff and his surety Young,and also to have the defendant deliver up the bond to the plaintiff with the defendant’s endorsement without recourse ; or if the defendant has collected the amount of the bond out of the obligor, then the plaintiff is entitled to an account.

The objection that the plaintiff’s surety Young, is not, and ought to be, a parly plaintiff, cannot be sustained.

The demurrer is overruled with costs. The injunction will be continued until the hearing.

Per Curiam

Demurrer overruled.