Civil action, by tbe plaintiff, against S. T. Pearson, for damages for wrongfully suing out an injunction, beard before Allen, J., at Fall Term, 1894, of McDowell Superior Court. Tbe defendant in tbis action bad brought an action against tbe plaintiff for damages for wrongfully cutting logs on land alleged to belong to him, tbe plaintiff in said action, and obtained an injunction forbidding tbe defendant in that action (plaintiff in this) for cutting or disposing of tbe logs.
Good law ✅— No negative treatment on recordhow we know
Decided 1895-02-05
How this case has been cited
Cited by 3 later decisions — most recently March 1945
1 district · 2 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
Under Chapter 251, Acts of 1893, it is no longer necessary to allege want of probable cause in proceedings to recover damages against plaintiff in attachment suits.
¶2
The second ground of demurrer ought to have been sustained.
The Code,
Section 341, does not contemplate that a separate action shall be brought on an injunction bond, but that the damages sustained by reason of the injunction shall be ascertained by proceedings in the same action and in a mode most expeditious and least expensive to the parties, consistent with the due administration of justice and with orderly proceedings.
N. C. Gold. Co.
v.
Ore Co.,
79 N. C., 48.
¶3
That the defendant was sued alone in this action, and not his sureties on the injunction bond with him, makes no difference. The undertaking does not impose any new liability on the defendant, but simply provides an additional security, and therefore the damage which the plaintiff suffered, if any, should have been assessed in the same manner as if the sureties on the undertaking had been moved against, i. e. in the'same action in which the injunction was issued.
¶4*720
The motion made by the plaintiff in the action in which the injunction was issued, to have his damages assessed was premature. Before that motion could have been allowed, there must have been a final determination of the action.
Thompson
v. McNair, 64 N. C., 448. There was error in the ruling of the Court below. The demurrer ought to have been sustained.
