Legal Opinion

Branch Ex Rel. Bank of Cape Fear v. Elliot

Supreme Court of North Carolina

Decided June 5, 1831PublishedCited by 3 opinions

Debt, upon a penal bond, executed by tbs defendants,' as sureties for one John McRae, sheriff of Cumberland, tried before bis Honor Judge Norwood, in that county? on the spring circuit of 1830, The only, plea relied on by the defendants - was that of a former recovery — and a verdict was taken for the plaintiff, subject to the opinion of the court on the following case: 1 ' • The bond was for ¿£5,000, payable to u Iris Excellency John Branch, Esquire, Governor, &c.” but…

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Debt, upon a penal bond, executed by tbs defendants,' as sureties for one John McRae, sheriff of Cumberland, tried before bis Honor Judge Norwood, in that county? on the spring circuit of 1830, The only, plea relied on by the defendants - was that of a former recovery — and a verdict was taken for the plaintiff, subject to the opinion of the court on the following case: 1 ' • The bond was for ¿£5,000, payable to u Iris Excellency John Branch, Esquire, Governor, &c.” but not-being taken according to tbe directions of tbe act of 1777,. (Rev. c. 118) the writ was “ to answer John Branch,…

1Opinion of the Court

Rupein, Judge.

Repeated decisions of this court have established that such bonds, as that sued on here, not being taken in conformity to the act of 1777 (Rev, c. 118) cannot he proceeded on in the manner prescribed by that statute. The State Bank v. Twitty, (2 Hawks 1) is a leading case; and that has been followed by others. Those decisions relate emphatically to the remedies on such bonds. It shall not be summary : it shall not he by the successor: nor by an assignee. By consequence, successive actions (given by the act of 1777, on bonds taken according to it) cannot be sustained. Vero it res…

2Cited by3 opinions

  1. New Home Sewing MacHine Co. v. SeagoSupreme Court of North Carolina · 1901
  2. Gabie v. . MeilanSupreme Court of North Carolina · 1816
  3. New Home Sewing MacHine Co. v. SeagoSupreme Court of North Carolina · 1901

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