27 N.C. 67 | N.C. | 1844
The case was that the plaintiff sued out his writ against Redding J. Hawkins and Figures Lowe, returnable to Halifax County Court, which was executed by the defendant Brickell, he being then the sheriff of said county, without taking any bail. The plaintiff prosecuted his suit regularly to judgment, and then sued out his ca. sa. against the defendants, to wit, Hawkins and Lowe. Hawkins was arrested under the ca. sa. by the sheriff Brickell, the defendant, and the execution returned non estinventus as to the defendant Lowe. This sci. fa. then issued to subject the defendant Brickell to the payment of the judgment against Hawkins and Lowe as the special bail of Lowe. Before the arrest of Hawkins he claimed the benefit of the act of the General Assembly passed for the relief of insolvent debtors, and gave to the sheriff a ca. sa. bond, as it is termed, that is, a bond for his personal appearance at the succeeding term of Halifax County Court to take the benefit of said act. Before the day upon which Hawkins was, by his bond, bound to appear he and the plaintiff came to an agreement that Hawkins should give the plaintiff Ferrall security for some other debts which he owed him, and Ferrall should release his claim against him under the judgment upon (68) which he had been arrested, and should withdraw all opposition to his discharge; and it is further stipulated that Ferrall should be at liberty to pursue his claim against Lowe and the defendant Brickell as his bail. Hawkins did secure the debts as agreed, and no further steps were taken by Ferrall upon the ca. sa. bond against him, but no release was executed. The jury found a verdict in favor of the plaintiff, subject to the question of law reserved for the consideration of the court. The presiding judge set aside the verdict, and gave judgment of nonsuit against the plaintiff, from which he appealed.
In the opinion of this Court, there was error in the judgment of nonsuit against the plaintiff, and we suspect the error was occasioned by not duly regarding the situation in which the parties stood at the time the agreement was entered into. The defendant Brickell, by not taking bail from the defendants Hawkins and Lowe, became under our law special bail, or bail to the action, and, as such, liable to all the responsibilities of bail; he became bound that the defendants should pay such judgments as might be recovered against them, or surrender their bodies. Both in England and in this State it is well settled that a plaintiff seeking redress against bail must first sue out an execution against the body of the principal, and have it returned, before he can proceed against the bail either by action of debt on the bond or by scire facias. But the ca. sa. answers, and it is intended to answer, a very different purpose there from what it does here. The bail in England stipulates merely for the delivery of the defendant, and not for the payment of the demand, and the plaintiff has the right to proceed either against the property or person of the defendant. It has, therefore, been held proper that he should do something plainly indicating his intention to proceed against the person in order to fix the bail. Petersdorf on Bail, p. 355; Wilmon v. Clark, 1 Lord Ray., 156; South v. Griffith, Cro. Car., 481. Upon the above principle 2 Sellon's Practice, 44, lays down the rule that if plaintiff sues out execution against (69) property of the principal, it is an election by him which discharges the bail. This doctrine has been long since overruled, and it is settled that plaintiff may make out a fieri facias against property of defendant, and, upon its proving unavailing, may issue his ca. sa., or may issue both at the same time, provided the latter is not executed until the former is returned, even where there is a partial payment on the fi. fa. Archbold's Practice, addenda, 13; McNair v. Ragland,
We are, therefore, of opinion that there is error in the judgment of his Honor; that the judgment of nonsuit must be set aside, and judgment entered for the plaintiff, with costs.
PER CURIAM. Reversed, and judgment for plaintiff.
Cited: Trice v. Turrentine, post, 238; Jackson v. Hampton,
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