4 N.C. 83 | N.C. | 1814
The sci. fa. in this case is in the common form, to which the defendant pleaded "nul tiel record."
It is only necessary to ascertain the legal meaning and extent (84) of the plea to decide whether the plaintiff is bound to produce the bail bond or to account for the loss of it. The plea must be taken as an answer to the sci. fa., which recites matter of record, and only putssuch matters in issue — such as the judgment against the principal and the writ of ca. sa. But it is no answer to any other matter contained in the sci. fa., which is in pais. Although the act of Assembly directs the sheriff to take and return bail bonds, together with the writs, it does not make them matter of record; because it permits the person charged as bail to deny the execution of the bail bond, provided he supports his *67 plea by affidavit. If they were matter of record, their execution could not be denied even on oath.
It follows, then, that as the plea in this case does not put the existence of the bail bond in issue, the plaintiff was not bound to produce it, or to account for its loss.
Judgment for plaintiff according to sci. fa.
Cited: Hamlin v. McNeill,