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MATTER OF SIMON

No. 7718SC151.

243 S.E.2d 163 (1978)

In the Matter of the Deed of Trust of Marvin SIMON, Herbert Cashvan and Claude Harris, partners t/a Lea Company, Grantors, to Archie C. Walker, Trustee, Recorded in Deed of Trust Book 2703, page 481, Guilford County Registry.

Court of Appeals of North Carolina.

April 18, 1978.

Attorney(s) appearing for the Case

Dees, Johnson, Tart, Giles & Tedder by J. Sam Johnson, Jr., Charles M. Tate and Charles R. Tedder, Greensboro, for petitioner-appellee.

Turner, Enochs, Foster & Burnley by C. Allen Foster, James L. Burnley, IV and Eric P. Handler, Greensboro, for respondents-appellants.

MORRIS, Judge.

Although appellants concede that appellee is entitled to damages, they contend that the damages must be limited by the amount of the bond. We are constrained to agree. For many years, the law in North Carolina has provided that a person wrongfully restrained could elect either (1) to recover only the amount of the bond for the damages he has suffered simply by petitioning the trial court in that action for recovery or (2) to forego his action on the...

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