
    
      LEAKE vs. BREEDLOVE & AL.
    
    Appeal from the court of the third district.
    A bond given on the sueing out of an injunction cannot be cancelled on motion of the obligor.
   Porter, J.

delivered the opinion of the court. Breedlove, Bradford & Robeson obtained judgment against Leake, and issued execution. He applied for, and obtained an injunction, on the ground that between the time of the rendition of the judgment, and the issuing of the writ of fieri facias, he had made certain payments. The injunction after being held up for several terms, was dissolved.

Jos. E. Johnson, the surety on the bond given by Leake to obtain the injunction, moved the district court to cancel the bond, on the ground that the writ had been rightfully sued out, and that the reason for which it was dissolved, proves there was no fault in Leake in obtaining it.

The court went into an examination of the facts, and ordered the bond to be cancelled. The defendants filed a bill of exceptions, and appealed.

East'n District.

May, 1823.

Watts & Lobdell for the plaintiff, Workman for the defendants.

It is the opinion of the court, that the course pursued by the surety to obtain relief was irregular, and is unsupported by law. Parties, wishing to have their rights investigated in courts of justice, must in all cases begin their action by petition in the ordinary way, unless when the legislature has thought proper to make exceptions to the general rule by express enactment. We see no more right in the maker of this bond, to call by motion on the payee to investigate his right to it, than he would have had in the common case of a promissory note, given on any other consideration, than that of taking out an injunction. From the moment the writ was dissolved, the defendants were out of court, and they could not be legally brought in but by citation.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that there be judgment for defendants, with costs in both courts.  