Nesbitt v. Ballew, 10 N.C. 57, 3 Hawks 57 (1824)

June 1824 · Supreme Court of North Carolina

10 N.C. 57, 3 Hawks 57

Nesbitt v. Ballew.

1 From Burke.

A Defendant, brought in as bail on set. fa. pleaded, in the County Court, certain pleas, and a judgment was rendered against him; 'on appeal to the Superior Court, it did not appear how the pleas in the County Court had been disposed of, and, therefore, it was held by this Court, that the judgment of the Superior Court, against the Defendant, was improperly rendered.

By the act of 1803, all executions, issued by a Justice of the Peace, must be made returnable within three months, and an officer is not at liberty to return them, unexecuted, in a shorter time.

The Plaintiff, by warrant, obtained a judgment, on 23d October, 1819, against one Brack, for 835 18f debt, and 50 cents costs, and the Defendant became bail to the officer for Brack’s appearance. On the 29th of October, 1819, a ca. sa. issued against Brack, and on the 1st December, 1819, the Plaintiff sued out, before a Magistrate, a notice, in the nature of a scire facias, against Defendant, setting forth therein the recovery of the judgment aforesaid, against Brack $ that execution thereof remained to be had ; that the Defendant, on the 21st day of October, 1819, 'became special bail for Brack, by a bond for that purpose, duly extern ted to Da* vid Biddle, constable, upon the execution of the warrant ; that the said Brack had not paid- the said judgment, nor rendered himself to prison j nor had the Defendant surrendered him in discharge of himself, and requiring the Defendant to appear before a Magistrate and shew cause why the Plaintiff should not have execution against him, for the debt and costs aforesaid.

This notice was returned before a Magistrate, “ executed on 26th January, 1820, when it was dismissed at the Plaintiff’s costs," from this judgment the Plaintiff appealed to the County Court, where the Defendant appeared and pleaded.” JVb capias issued against prind- pal — principal surrendered — payment—set off — stat. Urn.; and a judgment was, in the County Court, rendered in ** favour of Plaintiff, when the Defendant appealed to the Superior Court. At September Term, 1823, the cause came on and was argued, when the Judge took time to consider; carried the papers with him on his circuit, and after the adjournment of the Court, returned them to the Clerk endorsed, “ My opinion is, that judgment ought to he entered for the Plaintiff.” Upon this, execution issued against Defendant, and at the next Court, he, by his attorney, moved to set aside the execution, which was doné. The Plaintiff, by his counsel, then moved that, upon the endorsement of the Judge who presided at the last Term, a judgment be entered up against Defendant,'which was done,* and from this judgment ho. appealed to this Court.

Hall, Judge.

It appears that the Defendant pleaded certain pieas, in the County Court, in discharge of himself as bail; but how those pleas have been disposed of, does not appear. I think that should have appeared before judgment was given against the Defendant in the Superior Court.

Another objection presents itself in this case. A ca. sa. issued afr.inst the body of the debtor, the 29th of October, 1819, and the sd. fa. issued against the bail on the 1st of December, of 1 he same year. By the act of 1803, ch. 627, sec. 6, all executions issued by a Justice of the Peace, shall be made returnable in three months from the date of said execution. The officer might execute it as soon as he could j but the Legislature prescribed that time within which it was his duty to endeavour to execute it, and he was not at liberty to return it, unexecuted, in a shorter time. This has. been done in the present case, and if an officer is at liberty to return it in one month, he may return it in one week, or in one day.

The object of tlie Legislature was to make the bur-then of the debt fall upon the debtor, if he could be reached in this way, and only to have recourse against the bail, in case that mode of proceeding against the principal proved unsuccessful. For these reasons, I think the judgment, given in the Superior Court, should be reversed. ,,

And of this opinion was the rest of the Court.