| N.C. | Jun 5, 1848
The plaintiff obtained a judgment against the defendant (212) Lisk for the sum of $34.40, with interest from 6 September, 1838, on a warrant from a justice of the peace, whereupon a capias adsatisfaciendum issued, dated 10 January, 1845, upon which the defendant was arrested and gave bond for his appearance at the Court of Pleas and Quarter Sessions, to be held for said county on the first Monday of April, 1845, with Thomas Williams, Green Smith and Alexander Zachary as his sureties; and at said term the defendant proposed to take the oath prescribed for the relief of insolvent debtors, which was objected to by the plaintiff, and thereupon an issue of fraud *160 was made up; and there being no trial by jury in the County Court, the case was transferred to the Superior Court for trial, and at February Term, 1846, of that court the defendant Lisk appeared, and by his counsel moved to nonsuit the plaintiff. The plaintiff was then called and a nonsuit entered of record. At the subsequent term of the Superior Court, viz., at August Term, 1846, the plaintiff offered an affidavit that he had employed an attorney to attend to his cause against the said D. M. Lisk, and that his said attorney had omitted to enter an appearance for him. Whereupon, the court ordered that the cause be, reinstated. The cause was not reached, and was continued at that term, and continued until Spring Term, 1848. The cause then being called, the plaintiff's counsel had the defendant Lisk called and, he failing to appear, moved the court for judgment against him and his sureties. This was opposed by the defendant's counsel, who objected, first, because of the invalidity of theca. sa.; secondly, because the court had no power to set aside the nonsuit upon the affidavit made, and reinstate the case upon the docket. These objections were overruled by the court and judgment given against the defendant Lisk and his sureties for the sum of $52.31, to be discharged upon the payment of (213) $31.11 and costs.
From which judgment the defendants prayed an appeal to the Supreme Court, which was granted.
The first objection urged in the court below to the rendition of a judgment against the defendants cannot be sustained. After giving bond with sureties for his appearance in court to take the benefit of the act passed for the relief of insolvent debtors, and joining in an issue tendered by the plaintiff upon a suggestion of fraud, it is too late for the debtor or his sureties to bring forward an exception to the writ of ca. sa. under which the arrest was made. It was so decided in Dobbin v. Gaster,
The other objection was founded upon a mistaken apprehension of the effect of the judgment of nonsuit, rendered against the plaintiff at Spring Term, 1846. That judgment was irregularly and improvidently given, and was properly set aside, upon the application of the plaintiff at the ensuing term of the court, *161
for, this being a proceeding upon final process, a judgment of nonsuit could not in a technical sense have been given. After a debtor who has been arrested under a writ of ca. sa. has given bond for his appearance in court to obtain the benefit of the act for the relief of insolvents, he must pursue the course prescribed in the act in order to entitle him to take the oath and be discharged. The creditor who is to be affected by his discharge has a right, if he chooses to avail himself of it, to be present to see whether all the requisitions of the law have been complied with, and to object to the discharge if they have (214) not. If fraud be suggested by the creditor and an issue made up to try the specifications, the plaintiff may insist upon the trial, or he may withdraw, or, perhaps, by his neglect abandon the issue; but neither a withdrawal nor an abandonment of the issue will render it unnecessary for the defendant, the debtor, to take the oath, or entitle him to be discharged without taking it. The failure of the plaintiff to appear when the cause is called for trial is not a ground for a judgment of nonsuit against him, and the utmost effect it can have will be to give to the defendant the right to have a jury impaneled to try the issue and to have a verdict found in his favor for the want of testimony on the part of the plaintiff; or perhaps to treat it as a withdrawal or waiver of the issue by the plaintiff, so as to enable him to take the oath and be discharged. Unless he obtain his liberty by the act or consent of the plaintiff, which will be a satisfaction of the debt (Hawkins v. Hall,
His Honor, therefore, did right in overruling the defendants' objections, and the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Houston v. Walsh,
(215)