State v. Magniss, 2 N.C. 115, 1 Hayw. 115 (1794)

Sept. 1794 · North Carolina Superior Court

2 N.C. 115, 1 Hayw. 115

State v. Magniss.

Recognizances bind lands from the time at which tiiey are entered in: to, but zjí. fa. only from its teste.

In this case the Defendant, who had been bail for his son, applied to the Court upon an affidavit filed, to be relieved from the forfeiture of his recognizance, upon which judgment final had been entered under the act of 1788, eh. oi. sec. 2. and to be permitted to enter into new recognizance to attend as a witness at the next term : but it was said he was about to move out of the State.— Whereupon the Attorney-General opposed this application. He said his former recognizance ought not to be remitted, for in that case the State would have no hold at all upon him ; for though he now had lands he might sell them and move away, and they, were not liable to tiie recognizance but only from the time theji.fa, issued againt them : and for this he cited the case of Bell v. Hill, determined at Halifax Superior Court. He further said, if the fi.fa. could have no retrospect in a case where it issued upon a judgment, it couid have none where it issued upon a recognizance forfeited $ and tiiat a recognizance had no greater force to hind the land than a judgment had, for that each were mentioned in the same manner in the statute 13th Edw. I. eh. 18 which'’ introduced the elegit.

Judge Jlshe made no observations.

Judge Williams

The decision at Halifax was a proper one. In England, where the lauds are bound from the judgment, there judgments are entered in the King’s .Bench or Common Picas only ; thither all persons may-resort with a certainty of finding whether or not such a judgment as would affect lands, had been entered up : but in this country» judgments arc not capable of creating such notoriety — no man'knows where to search for a judgment that lie suspects may be probably taken — the Superior Courts — Hie County Courts — and Justices of the Peace out of Court-may pass judgments to aifect land, and no one knows where to search for them, it is very proper therefore in this country, that lands should be bound in case of judgments, hut from the time of the teste of the/., fa. only ; but recognizances remain as they were, because tiie land is made liable expressly by the words of the recognizance — “ to be levied of my goods and' chattels, lands ’and tenements, upon condition,” &c. Now, when this condition is not complied •with, it is the same thing as if he had expressly bound bis land to pay that sum absolutely and unconditionally on the day of the recognizance made.

Judge Ashe assented.

Note. — Vide Bell v. Hill, and note thereto, ante 72. Burton v. Murphey, N. C. Term Rep. 259.