Cowan v. M'Cullough ( 1818 )

The opinion of the Court was delivered by

Mr. Justice Grim^m.

But it seems the better opinion, that under our act of Assembly, (1 Faust, 213,) that in cases of this kind, to prevent unnecessary suits in equity, where bonds are given, conditioned for the performance of covenants, or for the delivery of property, or for things other than the payment of money, that the plaintiff may, in all’such cases, before he takes out execution, (and the defendant may by rule of Court compel him thereto,) submit the condition of such bonds, and the special circumstances, to a Jury, in like manner as on a writ of inquiry; which Jury may assess and fix the debt or damages actually due. Upon this act it is thought reasonable that the defendant should also be let in with such proof of special circumstances as he may have in his power to prove; and I am disposed to relinquish the opinion I formed on the trial, as to the inadmissibility of such testimony, and therefore am of opinion that the motion should be granted.

Bay, Mott, Colcoch, Johnson, Cheves, and Gantt, J. concurred.