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58 N.C. 140

McRae v. . Davis

Supreme Court of North Carolina

Decided December 5, 1859

Supreme Court of North Carolina · decided 1859-12-05

D. A. Davis, as cashier of the branch of the bank of Cape Fear, at Salisbury, obtained a judgment, at law, against William McRae, Calvin Cochran and others, upon which an execution issued directed to the sheriff of Montgomery county, in which county all the defendants resided.

Cited by 2 later decisions — most recently January 1934

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1859-12-05

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PeaRSON, C. J.

¶1 There is no error in the decretal order. The injunction was improvidently granted, and ought to have been dissolved, on the ground, that the bill discloses no equity.

¶2 The case turns upon the effect of a payment by McRae, the principal in the execution, to the sheriff, Calvin Cochran, who held the execution, and who was one of the defendants in the execution. Was this a satisfaction of the judgment? If it was, then the execution which afterwards issued, and in regard to which the injunction is granted, was, in law, of no force or effect, and the plaintiff had a plain remedy in the Court from which it issued, by writ of audita querela to have the execution called in and satisfaction entered on the record. The same thing could have been done upon notice and motion in the nature of an audita querela, which, in our practice, is sub *142 stituted for the ancient judicial writ, issued by the Court where the judgment was;- — not purchased out of the Court of Chancery like an original writ. See Fifzherbert’s Natura Brevium.

¶3 If the payment by McRae to Cochran was not a satisfaction, then, of course, the plaintiffs have no equity. So, taking it either way the question, satisfaction or no satisfaction, was a dry question of law, and there is no equitable ingredient involved in it.

¶4 Per Curiam, Decretal order affirmed.

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