Opinion
(Spring Riding, 1801.)
1. When bail to a sci. fa. pleads nul tiel record, the plea refers to the record of the judgment, and if that agrees with the record set forth in the sci. fa., though not with that recited in the ca. sa., it is sufficient.
2. The insufficiency of the jail forms no excuse for not taking bail.
3. The bail cannot take advantage of the fact that the judgment against their principal has lain dormant more than a year and a day before sci. fa. against them.
SCI. FA. against the sheriff as bail. He has executed the writ, (139) but had not taken bail. Defendant pleaded that the jail was insufficient and had been protested by him, nul tiel record; and that after the ca. sa. issued, the judgment had lain dormant for more than a year and a day before this sci. fa.
The record of the judgment is that which is referred to by the plea of nul tiel record; and that agrees with the judgment stated in the sci. fa., though not with the ca. sa. The record, therefore, sufficiently disproves the plea. As to the insufficiency of the jail, that forms no excuse for not taking bail; for by the act of 1786, relative to the rebuilding of Franklin jail, it is provided by a public clause that the sheriff shall carry his prisoner to the jail of the district. As to the dormancy of the judgment, the cases cited 2 L. Ray, 1096, 6 Mo. 256, 304, prove that the bail cannot take advantage of that circumstance.
Judgment for the plaintiff.
NOTE. — From the case of Granberry v. Pool, 14 N.C. 155, it appears that no matter can be pleaded in discharge of the liability of bail except the death or surrender of the principal. See, also, Howzer v. Dellinger, 23 N.C. 475.
Cited: Gray v. Hoover, 15 N.C. 477.