Speight v. Wooten, 14 N.C. 327, 3 Dev. 327 (1832)

June 1832 · Supreme Court of North Carolina

14 N.C. 327, 3 Dev. 327

William Speight v. William Wooten.

Under the act of 1822 ( Rev. c. 1131) for the relief of insolvent debtors, the sickness of the surety is no excuse for the default of the principal.

The plaintiff had recovered a judgment in the Comity Court of Wayne, against one Slancil, upon which a ca. sa. issued. The defendant, under the act of 1822 (Rev. £. 1131,) became the surety of Standi for his appearance at’the County Court, for the purpose of taking the insolvent debtor’s oath. Standi made default, and a judgment was rendered on the bond against him and the defendant, for the amount of the debt. Afterwards the defendant sued out writs of supersedeas and certiorari, and stated in his affidavit to procure them, that after the execution of the bond, and before the return day of the ca. sa. he, the defendant, was taken dangerously sick, and for that reason was unable to attend at the court and surrender Standi. At the return of the certiorari, before his Honor Judge Martin, on the last circuit, the writ was dismissed on the motion of the plaintiff, and judgment being rendered upon the bond given by the defendant under the act of 1810, upon suing out the writ, he appealed.

A summary judgment is properly rendered upon a bond given under the act of 1810, {Rev c. > 93, ■ upon suing out a cer-tiorari.

Henry and Badger, for the defendant*

¿dordecai, for the plaintiff.

Ruffin, Judge.

The counsel for the defendants pro-» perly yield, that the judgment of the County Court was right, and that the sickness of the surety was no sufficient ground for relief against that judgment. He hound himself for the appearance of the principal debtor. It is indeed his privilege to compel that appearance, if not voluntarily made. But that is between him and his principal ; and if he cannot, either by reason of his own illness, or the absconding or other fraud of the principal, the surety must submit to pay the debt.

It is however objected, that there was error in the Superior Court in giving a summary judgment on the bond given for the certiorari. The act of 1810 (lieu. c. 793) is not entirely perspicuous on this point; but the nature of the subject, as well as the words used, strongly incline us to the opinion, that the bond is not only to be taken, but proceeded on li in the same manner, and under the same regulations,” as those given upon appeals. The certiorari is of the nature, and in the place of the appeal; the bond is to be transmitted with the record : and a new judgment against the principal is in each case pro.-, nounced in the Superior Court. Why send the bond to the Superior Court, if it is not to be acted on there ? Why put the parties to a new suit, when the plaintiff’s demand has been finally and judicially ascertained, and the surety cannot discharge himself but by paying the debt ? This view is confirmed by the general practice under the act for twenty years; during which period, with few exceptions, all the judges have given judgments-on motion.

Per Curiam.t-Judgmewt aeeirmeb.