Hogg v. Bloodworth, 1 N.C. 477, 1 Cam. & Nor. 477 (1804)

June 1804 · North Carolina Court of Conference

1 N.C. 477, 1 Cam. & Nor. 477

Hogg versus Bloodworth.

Sci. Fa. against the defendant as sheriff of the county of New-Hanover, on an amercement nisi. made at April term, 1803, for not returning a writ directed to him, against James Richards and others, returnable to April term, 1803.—This Sci. Fa.issued, returnable to October term, 1803, to shew cause why the conditional judgment, on the amercement of April term, should not be made absolute. At October term, 1803, the Sci. Fa. was returned, “made known,” and the defendant by his attorney appeared and pleaded, “That he, the said Bloodworth, was prevented by sickness, from returning said writ,” and moved the court for ageneral continuance, without shewing any cause, which was overruled by the court, and a jury impannelled to try the issue on the plea, which being found against the defendant, the court gave judgment for the plaintiff.

The question is, whether under the act of Assembly respecting scire facias on amercements against Sheriffs, the defendant is entitled to a general continuance on pleading as a matter of course, without shewing any cause therefor.

Hall, Judge.

For every failure in a sheriff like the one now complained of, the court, by their order, may direct & to be paid to the party grieved, unless, lays the act of Assembly, such sheriff can shew 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 tight? 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 shew cause, act of 1777, ch. 8. sec. 5. If he was not to shew cause, or make any defence at that court, the order would become absolute; that, and no other, is the court assigned him to make his defence. 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 shew cause at the 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.

Macay, Taylor & Locke, Judges, concurred in opinion with Judge Hall, that the verdict was regularly taken, and ought to stand.