13 N.C. 254 | N.C. | 1829
FROM EDGECOME. I concur in opinion with the judge of the Superior Court that the surrender of the defendant in the ca. sa. to the sheriff of Pitt was a nullity, because the act of assembly (Rev., ch. 1131), on which this proceeding is founded, directs that the surrender by the surety shall be made "in open Court of the county to which the ca. sa. is returnable, or to the sheriff or other officer, as the case may be, of said county." It is further added that "the surety is hereby authorized to exercise all the power which by law special bail have over their principal." It is certainly not to be understood by this clause that the surety is at liberty to surrender his principal to the sheriff who made the arrest, *163 as special bail, by the act of 1777 (Rev., ch. 115), might do, because it would expressly contradict the plain words of the clause which preceded it, as before recited. But I understood it as giving power to the surety, as the act of 1777 gives to special bail, "to arrest the body of the principal and secure him until they shall have an opportunity to surrender him in open Court of the county to which the ca. sa. is returnable, or to the sheriff of said county.
I also concur in the opinion that the remedy upon the bond survived to the representatives of the original plaintiff.
With respect to the remaining question it is to be observed that the condition of the bond directed to be given by the defendant is "for his appearance at the next Court, at which the execution shall be returnable, then and there to stand to and abide by such proceedings as may be had by the Court in relation to his taking the benefit of this act." The bond given by the defendants in this case is conditional "that he shall make his personal appearance, etc., and then and there claim the benefit of the act of assembly for the relief of insolvent debtors, passed in 1882, and not depart from the said Court without leave thereof."
To claim the benefit of this act when the defendant in the ca. sa. (257) appears in Court is to act conformably to the mode pointed out by it as regards the rights of both parties. The plaintiff is authorized to suggest fraud or concealment of property, money, etc., by the defendant, in which case a jury must pass between the parties. The Court are authorized to continue the issue thus made up at the instance of either party. If the issue is tried at a subsequent term it is the duty of the defendant to attend the Court. He is liable to be examined on oath, and in case the jury shall find the issue against him, or he shall refuse to be examined on oath upon the trial, he shall be deemed in custody of the sheriff, and be imprisoned, etc., until a full disclosure, etc. It was in such a proceeding as this that Mooring claimed the benefit of the act, and during the time it was carrying on that he stipulated not to depart the Court without leave. I, therefore, think, as he failed to attend Court, and was called out, and offered no legal excuse for so doing, the bond was forfeited, and judgment should be rendered upon it as the act directs.
PER CURIAM. Let a judgment be entered for the debt, interests and costs.
Cited: Arrington v. Bass,
(258)
