59 S.E. 64 | N.C. | 1907
From judgment rendered against him, the defendant appealed.
The facts sufficiently appear in the opinion of the Court. Sci. fa. against Holt, principal, and Ballard, surety, on appearance bond. The defendant was called on Wednesday of April term, and judgment nisi and capias ordered. It was issued 10 July and served on surety, the principal not found, having become a fugitive from justice on another charge. On motion for judgment absolute, the surety, Ballard, answered that Holt did not appear in court on Wednesday when called, because he could not, being under arrest in the town lockup, and that as soon as released he came to the courthouse, but found that his case had been continued. The solicitor replied that Holt had not renewed his bond after being called out, that he had not attended court after the sci. fa. issued, and was now a fugitive from the State; that, when called out, said Holt was in town custody on a charge of being drunk and disorderly.
(451) It is very true, as Sir Boyle Roche said in the Irish Parliament, that "no man can be in two places at the same time, barring he is a bird," and that Holt could not be down and drunk in the town guardhouse and at the same instant soberly and seriously conducting his defense in the Superior Court. But he had no business to be drunk. His being in town custody was neither "the act of God nor the public enemy." He could not plead his own wrong.
The surety (Ballard) says he was not surety that Holt should keep sober and out of custody of the law on some other charge; hence he is not responsible for Holt not appearing on Wednesday when called. If that be conceded, the surety (Ballard) was, nevertheless, not discharged *327
from liability on the bond until Holt renewed his bond or appeared and stood his trial. The continuance of the case, unless the bond is renewed, does not discharge the surety. S. v. Morgan,
Affirmed.
(452)
