If a plaintiff in a suit at law be taxed with more costs than he is legally bound to pay his remedy is by a motion in the court of law for a retaxation of the costs, and he cannot, after neglecting to avail himself of this remedy, have relief in equity.
If an administrator be sued upon notes and bonds of his intestate pending an action previously commenced against him upon a covenant of his intestate, he should plead the pendency of the action on the covenant, and that the assets would be liable in the first instance to the recovery in that action, if effected, and no assets ultra. And if he neglects to avail himself of such defense, he cannot afterwards have relief in equity.
DANIEL, J., after stating the case as above, proceeded as follows:
We are of the same opinion as the judge was who decreed a dissolution of the injunction. We think the injunction at first was improvidently granted. If the plaintiffs were taxed with more costs in the suit at law than they were legally bound to pay, their remedy was by a motion in the court of law for a retaxation of the bill of cost. If the plaintiffs, as the representatives of Harman, were sued on notes and bonds subsequently to the commencement of Dickey's action on the covenant, they should have pleaded the pendency of that action, and that the assets would be liable in the first instance to Dickey's recovery, if effected; and no assets ultra. Where a party has a plain remedy at law and neglects to avail himself of it, he has no right to ask relief in equity. The decree must, we think, be affirmed with costs.
PER CURIAM. Decree accordingly.
Cited: Champion v. Miller, 55 N.C. 196.
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