Page v. Winningham, 18 N.C. 113, 1 Dev. & Bat. 113 (1834)

Dec. 1834 · Supreme Court of North Carolina

18 N.C. 113, 1 Dev. & Bat. 113

JAMES PAGE v. GREENBERRY WINNINGHAM.

A defendant, who has given bond under the act of 1822, eh. 3, for the relief of insolvent debtors, cannot object to the informality of the bond, and pray a discharge on account thereof.

When this Court affirms the judgment of the Superior Court, ordering a defendant in a off. sa. to be imprisoned, it directs a procedendo to the Court below, to carry the judgment into effect.

This case came on before his honour Judge Seawell, at Randolph, on the last Circuit, when it appeared, that the defendant had been arrested under a ca. sa., at the instance of Smitherman and Page, for the use of James Page, and had given a bond with security, payable to James Page alone, conditioned for “ his personal appearance before the Justices of the County Court of Pleas and Quarter Sessions, to be held for the county of Randolph, at the Court-house in Ashborough, on the first Monday of August next, then and there to stand and abide by such proceedings as may be had by the Court, in relation to his taking the benefit of the law, provided for the relief of debtors in certain cases.” Upon the appearance of the defendant in the County-Court, his counsel moved for his discharge, upon the ground that-the appearance bond was illegal and void, being made payable to James Page alone, instead of Smitherman and Page, and for other defects in its condition, whereupon the Court ordered the defendant to be discharged, and the plaintiff appealed to the Superior Court. His honour held, that “ it was not competent for the defendant to object to the informality of the bond, which by the act of assembly he is required to tender for his release from confinement,” and reversed the order of the County Court, and adjudged that the defendant should be imprisoned until he should be discharged therefrom by due proceeding of law. From this the defendant appealed.

No counsel appeared for the defendant.

Mendenhall, for the plaintiff.

Gaston, Judge.

— The Court affirms the judgment which has been rendered in this case in the Superior Court. Wede em it unnecessary tó say more in support or explanation of the grounds of this decision, than to refer to those set forth in the opinion of the Judge below, of which we entirely approve.

In general, this Court enforces by its own process the execution of its own judgments; but as the defendant is not in person before us, and if he were, from the constitution of the Court, the ulterior proceedings, which may follow upon the judgment affirmed, could not be here had, we direct that in this case a procedendo issue to the Superior Court of Randolph, to cause the judgment there rendered and here affirmed, to be carried into effect.

Per Curiam. Judgment affirmed.