Opinion
(June Term, 1864.)
1. If the sheriff fails to take bail, the plaintiff need not file exceptions nor give notice to fix him as bail.
2. And the sheriff is said to fail to take bail when the paper returned by him as a bail bond is so defective and imperfect as to be adjudged not to be such.
(199) SCIRE FACIAS to charge the defendant as special bail of one Campbell, tried before Osborne, J., at Fall Term, 1862, of ORANGE, upon the following statement of facts agreed on by the parties:
The plaintiff brought an action against one Campbell and one Jackson, in Orange County Court, and the defendant being the sheriff of that county, arrested Campbell and Jackson by virtue of the writ, who, together with one Hedgepeth, under their hands and seals executed an instrument of writing, which is set out in Adams v. Hedgepeth, 50 N.C. 327, and which was returned to the county court by the defendant as a bail bond. After the judgment obtained in the original suit, Campbell left the State, and Jackson, the other defendant, being insolvent, the plaintiff sued out a sci. fa. against Hedgepeth as bail, and it was decided that the aforesaid paper-writing is not a bail bond. This suit was then commenced. No exception was taken to the said paper-writing as a bail bond at the return term of the writ in the original suit, or at any other time, and no notice was given to the defendant respecting the matter of bail or the insufficiency of the paper as a bail bond. Judgment was given for the plaintiff.
Graham for plaintiff.
No counsel for defendant in this Court.
The sheriff or other officer who arrests a defendant by virtue of a writ in a civil case will, according to the provisions of the Revised Code, ch. 11, sec. 1, become special bail for the party arrested, whenever he shall fail either to take a bail bond or the bail returned be held insufficient on exception taken and entered the same term to which said process shall be returnable, and due notice thereof given to the officer. The exception and notice are clearly not required where no bail which is so defective and imperfect as to be adjudged not to be (200) such, cannot be regarded as the taking of bail.
It follows that the sheriff or other officer who returns such a paper instead of a proper bail bond must be held as special bail, though no exception were taken nor notice given. See Adams v. Hedgepeth, 50 N.C. 327.
The judgment must be Affirmed.