Opinion
(December Term, 1829.)
1. Sureties to a ca. sa. bond taken under the act of 1822 (Rev., ch. 1131), for the relief of insolvent debtors, to protect themselves by a surrender of their principal, must make it in the Court to which the ca. sa. is returnable, or to the sheriff of that county; where the writ issues to another county, a surrender to the sheriff of it is a nullity.
2. The right of the plaintiff in the execution to a summary remedy survives to his personal representative.
3. A condition "to appear and claim the benefit of the act, etc., and not depart without leave," is substantially the same as that prescribed by the act.
4. Where the defendant in the ca. sa. appeared at the return day of the writ, and upon an issue being made up, the cause was continued, and afterwards the defendant made a default: Held, that the condition was broken, and the plaintiff entitled to judgment.
John J. Mooring, having been arrested by the sheriff of PITT on a ca. sa. at the instance of the plaintiff's intestate, returnable to the fall term, 1827, of EDGECOMBE, gave a bond with the defendants for his sureties, with a condition for his appearance at the return day of the writ, then and there to claim the benefit of the act of assembly for the relief of honest debtors, passed in 1822, and not to depart from said Court without leave thereof." At the day specified in the condition, (255) John J. Mooring duly made his appearance, and offered to take the oath of insolvency, but an issue of fraud was tendered by the plaintiff, and the cause was regularly continued until spring term, 1829, when the death of the plaintiff's intestate was suggested, and the plaintiff made himself a party. At the same term the defendants pleaded since the last continuance, a surrender by them of John J. Mooring, to the sheriff of Pitt, and his discharge under the act of 1773 (Rev., ch. 100). John J. Mooring failing to appear at that term, the plaintiff moved for judgment against the defendants according to the act of 1822 (Rev., ch. 1131). This was opposed by the defendants, the facts above stated being admitted to be true.
1. Because the surrender by them of John J. Mooring to the sheriff of Pitt, and his subsequent discharge under the act of 1773, was a performance of the condition of the bond.
2. Because John L. Mayo had died pending the suit, and although the right upon the bond might survive to his administrator, yet this was not the case as to the right to judgment upon motion.
3. Because John J. Moring at the return day of the writ of ca. sa. had appeared in Court and offered to take the oath of insolvency pursuant to the condition of the bond.
Upon the first point STRANGE, J., held the surrender to the sheriff of Pitt, after the return day of the ca. sa., to be a nullity, and that to be effectual it should have been in open Court or to the sheriff of Edgecombe during the recess. His Honor also held that both the right and the remedy survived to the plaintiff. But upon the third ground he held that there had been a compliance with the condition of the obligation, and accordingly overruled the motion for judgment, whereupon the plaintiff appealed.
The Attorney-General, for the plaintiff.
Gaston Hogg, for the defendants.
FROM EDGECOME.
I concur in opinion with the judge of the Superior Court that the surrender of the defendant in the ca. sa. to the sheriff of Pitt was a nullity, because the act of assembly (Rev., ch. 1131), on which this proceeding is founded, directs that the surrender by the surety shall be made "in open Court of the county to which the ca. sa. is returnable, or to the sheriff or other officer, as the case may be, of said county." It is further added that "the surety is hereby authorized to exercise all the power which by law special bail have over their principal." It is certainly not to be understood by this clause that the surety is at liberty to surrender his principal to the sheriff who made the arrest, as special bail, by the act of 1777 (Rev., ch. 115), might do, because it would expressly contradict the plain words of the clause which preceded it, as before recited. But I understood it as giving power to the surety, as the act of 1777 gives to special bail, "to arrest the body of the principal and secure him until they shall have an opportunity to surrender him in open Court of the county to which the ca. sa. is returnable, or to the sheriff of said county.
I also concur in the opinion that the remedy upon the bond survived to the representatives of the original plaintiff.
With respect to the remaining question it is to be observed that the condition of the bond directed to be given by the defendant is "for his appearance at the next Court, at which the execution shall be returnable, then and there to stand to and abide by such proceedings as may be had by the Court in relation to his taking the benefit of this act." The bond given by the defendants in this case is conditional "that he shall make his personal appearance, etc., and then and there claim the benefit of the act of assembly for the relief of insolvent debtors, passed in 1882, and not depart from the said Court without leave thereof."
To claim the benefit of this act when the defendant in the ca. sa. (257) appears in Court is to act conformably to the mode pointed out by it as regards the rights of both parties. The plaintiff is authorized to suggest fraud or concealment of property, money, etc., by the defendant, in which case a jury must pass between the parties. The Court are authorized to continue the issue thus made up at the instance of either party. If the issue is tried at a subsequent term it is the duty of the defendant to attend the Court. He is liable to be examined on oath, and in case the jury shall find the issue against him, or he shall refuse to be examined on oath upon the trial, he shall be deemed in custody of the sheriff, and be imprisoned, etc., until a full disclosure, etc. It was in such a proceeding as this that Mooring claimed the benefit of the act, and during the time it was carrying on that he stipulated not to depart the Court without leave. I, therefore, think, as he failed to attend Court, and was called out, and offered no legal excuse for so doing, the bond was forfeited, and judgment should be rendered upon it as the act directs.
PER CURIAM. Let a judgment be entered for the debt, interests and costs.
Cited: Arrington v. Bass, 14 N.C. 96; Wilkings v. Baughan, 25 N.C. 89; Williams v. Floyd, 27 N.C. 658.
(258)