1 N.C. 593 | N.C. | 1804
The question is whether, under the act of Assembly respecting scirefacias on amercements against sheriffs, the defendant is entitled to a general continuance on pleading as a matter of course, without showing any cause therefor. For every failure in a sheriff like the one now complainted of, the court, by their order, may direct £ ____________ to be paid to the party grieved, unless, says the act of Assembly, such sheriff can show sufficient cause to the court, at the next succeeding term after such order. It is contended for the defendant that if the sheriff, being called in by sci. fa., enters his plea thereto, that he has, as a matter of right, till the next court to procure testimony to support it. I cannot agree with that construction of the act; it expressly says he shall have till the succeeding court after the order is made to show cause. Act of 1777, ch. 8, sec. 5. If he was not to show cause, or make any defense at that court, the order would become absolute; that, and no other, is the court assigned him to make his defense. If he could not procure testimony, and was to make out a proper case for a continuance, the court would grant it. It is not like the case of a plea entered in a common suit; there time is expressly given till the next court by the act of Assembly, but that is not the case in the act that governs this question. He must either show cause at the *502 first court or make out a proper case for a continuance till the next; but he cannot have that indulgence as a matter of course.
(595) MACAY, TAYLOR, and LOCKE, JJ., concurred in opinion with HALL, J., that the verdict was regularly taken and ought to stand.
