1 N.C. 164 | N.C. | 1801
It is said in this case, in argument for the defendant, that before the revolution it was the practice of the courts of equity, upon granting injunctions after verdict, to direct bond with security to be taken, for the amount of the sum for which the injunction was granted; and this practice was substituted in the room of the practice in England, which in such cases directed the money to be paid into court. The act of 1782, ch. 11, declares, that the courts of equity in this state shall possess all the powers and authorities that the court of chancery, which was formerly held in this state under the late government, exercised;—so that if such was the practice before the revolution, it was the practice at the time when the injunction in question was granted; and the property seized by the defendant, as sheriff, and restored to Walke by him upon being served with the injunction, flood in
In the case, Tagert vs. Hill, although in England, agreeable to practice in that country, the sheriff is bound to keep possession of the goods, and may even proceed to sale; which I suppose, in case the goods are of a perishable nature, is the usual practice. It is
In England there is no positive law in this case more than in this country—it depends on the practice of the courts, sanctioned by judicial de-cisions; and the only difference is, that in this country, though the practice in this country has been uniformly different, it has passed sub silentio, and not sanctioned by a decision of the courts. If this will not justify the sheriff who acts agreeable to this practice, bona fide, without fraud, collusion or corruption, it will go great lengths to excuse, and had, no doubt, great weight with the jury who found in his favour—and this appears to be a hard action, and not to be maintained but upon principles stricti juris, on a practice not hitherto in use in this country. I am not disposed to disturb the security which the defendant has in a verdict; therefore I am of opinion that no new trial should be granted.
What was the practice of the sheriffs in the courts of chancery, under the former government, I know not, nor have I had