Thompson v. . McNair

64 N.C. 448

• Court: Supreme Court of North Carolina
• Decided: June 5, 1870
• Status: Published

Opinion

Pearson, 0. J.

Falls v. McAffee, 2 Ire. 236, is decissive of this case. It cannot be known judicially that the injunction was wrongfully sued out, until the action at law is disposed of. Suppose the defendant should he allowed to have judgment in this proceeding, on the ground that there was not probable cause, and afterwards the action at law be decided in favor of the plaintiff, he would be entitled to recover back the very damages that the defendant now seeks to recover, and the record of the Court would be inconsistent and contradictory.

An injunction in aid of an action at law, to preserve the property pending the suit, is of rare occurrence. The fact' that in order to make a report, the Commissioner in Equity felt constrained to pass upon the legal title in anticipation of the judgment in the suit at law, presents a legal absurdity, which the Courts avoid in judicial proceedings. An analogy may be found in the action for malicious prosecution. It is settled that the action cannot be maintained until the indictment is finally disposed of, either by an acquittal or a not. pros. Otherwise, the defendant might recover damages and be afterwards convicted of the offence, and thus the record be made to contradict itself.

We concur with his Honor in the Court below.

Of course the rights of the defendant, if he has any, will not be affected by refusing to allow him to proceed on the injunction bond until the action at law is disposed of. This order is made without prejudice, and the defendant will be at liberty to proceed hereafter, as he may be advised.

Pee Cueiam. Judgment affirmed.