Deviney v. Wells, 26 N.C. 30, 4 Ired. 30 (1843)

Dec. 1843 · Supreme Court of North Carolina

26 N.C. 30, 4 Ired. 30

ANN DEVINEY vs. JOHN K. WELLS, BAIL OF A. CROW.

A plaintiff, having recovered a judgment against the principal, issued a sci.fa. a-his bail. On the return of the sci.fa. the bail pleaded that no ca. sa. had issued against the principal and the issue was found in his favor. The plaintiff then, after the expiration of some years from the rendition of the judgment against the principal, issued another sci. fa. against the bail, to which the latter pleaded the statute limiting the time within which a sci. fa; shall issue against bail. Held that the time, during which the former proceedings against the bail were pending, should not be deducted from the computation. of the time, within which the sci fa., was ¡tp be sued out.

Appeal from the Superior Court of Rutherford County, at the Special Term, in July, 1843, his Honor Judge Dick, presiding.

This was a scire facias against the defendant as bail of one Abraham Crow. It appeared that the plaintiff at the Fall Term, 1834, of this Court recovered a judgment against Abraham Crow for the amount set forth in the sci.fa.; and that the defendant had become the bail of the said Crow ; that what purported to be a ca. sa. had issued on the judgment against Crow, which was returned “not found;” that on the 10th of January, 1837, a sci. fa. issued to subject the defendant as bail; that on the return of the same, several pleas were pleaded and among others that there was no ca. sa.; that the case came on for trial at Fall Term, 1838, when the sci. fa. was dismissed, because of a defect in the ca. sa., the jury having found the other issues for the plaintiff. A second ca. sa. was then issued and returned “ not found ; ” whereupon the present sci. fa. issued on the 6th of August, 1840, returnable to the Fall Term, at which term the defendant pleaded nul del record, no ca. sa., statute of limitations and former judgment. The Court adjudged that there was such a record, and the jury, under the charge of the Court, found the other issues in favour of the plaintiff. It was insisted on the trial by the defendant’s counsel, that the dismission of the first sci. fa. was a final judgment and bar, and also that the proceedings under it did not prevent the operation of the statute of limitations. The Court, being of opinion that neither objection would avail the defendant, gave judgment for the plaintiff, and the defendant appealed.

No counsel for the plaintiff.

HoJce for the defendant.

DaNiel, J.

The act of Assembly (Rev. Stat. c. 65, s. 16) declares, that “ no scire facias shall be issued out or prosecuted against the bail of any defendant to any writ or action, <fcc., but within four years after the rendition of a final judgment, or the entering of a final decree in the action or suit, to which bail is or shall be given.” Then follow in the act two provisoes. The plaintiff’s case is not embraced in either of them. More than four years had run, from the date of the judgment against Crow, the principal, to the issuing of this scire facias against the bail. The time, which elapsed pending the first scire facias, we think ought not to have been stricken out of the computation ; because the first scire facias was not determined against the plaintiff, “ either by nonsuit, arrest of judgment or reversal for error,” the only cases mentioned in the 17th section of the act, to prevent time from running in favor of the bail. There must be a new trial.

Per Curiam, New trial awarded.