Benton v. Duffy, 1 N.C. 98, 1 Cam. & Nor. 98 (1800)

June 1800 · North Carolina Court of Conference

1 N.C. 98, 1 Cam. & Nor. 98

Augustus Benton vs. William Duffy, Bail for James Green.

The Plaintiff obtained a judgment in the County Court of Orange vs. James Green, for whom the Defendant in this suit was bail; a Writ of Fi. Fa. issued, and a small part of the demand was satisfied; for the balance a writ of Ca. Sa. issued to the County of Orange, to which the Sheriff returned ‘not to be found;’ before the Ca. Sa. issued to Orange, the Defendant informed the Plaintiff, or his agent, that Green resided in the County of Edgecomb, and requested that the process might issue to that County; this was however refused, and when the Defendant made his defence to the Scire Facias, grounded on the aforesaid return, he among other things, relied on this as proof of collusion to charge the bail. Judgment was given for the Defendant upon the plea of nul tiel record to the first Scire Facias, because the Scire Facias stated that the judgment had been recovered against one James H. Green, and the record was of a judgment against James Green.

A second writ of Scire Facias issued, and was returned "executed;” and the Defendant pleaded “ Nul tiel record, former judgment, no Ca. Sa. to the Principal’s proper County, collusion to charge the bail, surrender of the Principal, death of the Principal, discharge of the bail by the election of the Plaintiff to sue out a Fi. Fa.” The Plaintiff replies, there is such a record, nul tiel record as to former Judgment, as to the plea of Ca. Sa. &c. Plaintiff replies a Ca. Sa. to Orange, where James Green was resident at the time the writ was sued out against him, and he arrested, &c. Defendant rejoins, that at and before the time of issuing the Ca. Sa. to Orange, the Principal resided in Edge-comb, and the Plaintiff had notice thereof; demurrer to the rejoinder and joinder, replication and issue as to the pleas, collusion to charge the bail, surrender and death, &c. demurrer as to the plea of discharge of the bail by issuing Fi Fa, and joinder. The County Court gave judgment upon the several pleas and demurrers for the Plaintiff; the Defendant appealed to the Superior Court of Law for Hillsborough District, when he withdrew the pleas that the bail was discharged by the election of the Plaintiff to sue out Fi. Fa, surren-der of Principal and death of Principal; and a Jury being impannelled, found that there was no collusion to charge the bail: Whereupon the Court ordered that the plea of nul tiel record, and the plea of former judgment, and replication thereto, and the plea of no Ca. Sa. to the Principal’s proper County, the replication, rejoinder, demurrer and joinder thereon, be transmitted to the Court of Conference for a final determination.

By the Court.—

In the former suit, the plea of nul tiel record went only to the existence of the particular judgment recited in the writ, namely, against James H. Green, and the production of a judgment against James Green, was considered by the Court a failure of record. The question whether the Defendant became bail for James Green, whether a judgment was obtained against him, whether the subsequent steps were legally taken so as to charge the bail, were neither discussed nor decided on. And it is only where the question between the parties has been once decided upon confession or verdict, that the judgment can be pleaded to bar another action. Hence, if a party fails by reason of a defect in his declaration, or by misconceiving his action, or by suing as Executor when he was Administrator, the judgment will be no bar in another action for the same cause.

The Ca Sa has in this case issued according to the act.

By the proper County, is meant that wherein the Defendant was arrested, which the Clerk can at once ascertain, by examining the writ, which serves as his guide in issuing the execution. This ought not to be departed from, unless a return of the Sheriff, or something equally satisfactory and conclusive evinces that the County where the Defendant was taken, no longer continues to be his proper County.