Arrington v. Bass, 14 N.C. 95, 3 Dev. 95 (1831)

June 1831 · Supreme Court of North Carolina

14 N.C. 95, 3 Dev. 95

Peter Arrington v. Gideon Bass et al.

The defendant in a ca- so. bond, given under the act of 1822 {Rev. c. 1131) is bound to attend at every term until the cause is finally disposed of.

The defendant Bass was arrested upon a ca. sa. and gave bond under the act of 1822 {Tuylor’s Rev. c. 1131) for his appearance at the August term, 1829, of Nash County Court. At that term, the following entry was made in the cause : “ Continued, upon cause shown by the defendant.” At the ensuing- term, upon a default by Bass, judgment was rendered «gainst the defendant and his sureties “ now as of the last termfrom which the defendants appealed.

On the'last circuit, his Honor Judge MartiN reversed the judgment of the County Court, and the plaintiff appealed.

A judgment , nwnc pro tunc is not erroneous, that0” it should have been as of the present term.

BewrmXf for the plnintifiV

Badger, contra.

Haxx, Judge.

The first notice we have of this case

is at August term, 1829= At that term the case was continued upon cause shown by the defendant Bass ; and the court by the, act of 1822 (Rex c. 1131) had the power; to continue it upon sufficient cause shown. Suppose for instance, that owing to some unavoidable accident, the defendant had it not in his power to prove, that he had given ten'days, notice to Ido creditors or their agents;, or attorneys, of his intention to avail himself of the benefit of the act: the court could not dó otherwise than grant a continuance. At November term, judgment was given against the defendant; and nothing illegal appears, in that The reason why -it was entered nunc pro túne, is not obvious. But certainly they ought to have given judgment, because it does not appear’ that the defendant Bass then made Ms appearance, or caused it to he en- .,, . tered. The bond which he gave for bis appearance was as °hligutoiy 011 him to attend then, as at the preceding term when the continuance was, granted at his instance, (Mooring v. James, ante 2 vol. 254.) And as he did not enter his appearance at the subsequent term» judgment against Mm was the legal consequence.

Ter Cuiíxusí.' — Judgment reversed.