51 N.C. 580 | N.C. | 1859
The defendant had been arrested on a capias ad satisfaciendum, at the instance of the plaintiff, issued by a single justice on a judgment rendered by another magistrate, and had given bond pursuant to the provisions of the Revised Code, chap. 59, sec. 6, for his appearance at the next court, and having made his appearance, the plaintiff moved that the defendant be imprisoned, he not having given any notice of his intention to take the oath of insolvency. The defendant opposed the motion, and moved for his discharge upon the ground that the judgment, upon which the ca. sa. issued, had been standing without any execution issuing thereon, for more than a year and a day. It was held by his Honor, in the Superior Court, (to which the case came by appeal,) that the execution could not be successfully attacked in this collateral way — that the execution justified the proceedings until regularly set aside, which could not be done in this mode. The defendant was thereupon ordered into custody, from which judgment he appealed to the Supreme Court. An execution which issues on a dormant judgment, is not void, but only voidable; Oxley v. Mizle, 3 Murph. Rep. 250; Brown v. Long, 1 Ired. Eq. 190. When the defendant in the present case was arrested on the execution which had been issued on the justice's judgment more than a year and a *581 day after it had been rendered, and had given a bond with the view of taking the benefit of the act for the relief of insolvent debtors, he might have been relieved from arrest upon a writ of habeas corpus; or, perhaps, upon placing himself again in actual custody, he might have moved the county court to quash the proceedings, and discharge him. Dobbin v. Gaster, 4 Ired. Rep. 71. But while he remained at liberty, by virtue of the bond which he had given for his appearance at the county court, he could not be heard to make objections to the regularity of the execution under which he had been taken. That execution, together with the bond, was in the nature of process to compel an appearance to answer at the next term of the county Court: Winslow v. Anderson, 4 Dev. and Bat. Rep. 9; Cohoon v. Morris, 1 Jones' Rep. 218. If the defendant had taken the proper steps to avail himself of the benefit of the insolvent act, the plaintiff could not have objected that the execution under which he was arrested, was irregular, and he ought not to be allowed to make the objection while he was availing himself of the liberty which his giving bond had afforded him. His Honor, in the Court below, was, therefore, right in overruling the defendant's objection, and ordering him to be imprisoned until he should comply with the requisitions of the act, of the benefits of which he was seeking to avail himself.
PER CURIAM, Judgment affirmed. *582
