Mears v. Speight, 49 N.C. 420, 4 Jones 420 (1857)

June 1857 · Supreme Court of North Carolina

49 N.C. 420, 4 Jones 420

JOAB MEARS v. JERVIS SPEIGHT.

No judgment can he taken, upon a ca. sa. bond, if the debtor appears and answers when called at the Court to which he is' bound, although his surety does not surrender him.

But on an appeal to the Superior Court, the debtor is still bound to appear, when called in the regular course of the Court, and failing to do so, the plaintiff is entitled to a judgment on the appeal bond.

MotioN for JUDGMENT upon the bond of an insolvent debtor, tried before Pebson, J., at the Spring Term, 1857, of Robeson Superior Court.

The defendant was arrested under a ca. sa., issued by a single justice of the peace, at the instance of the plaintiff, and gave bond for his appearance at the next term of the County Court of Robeson County, to take the oath under the insolvent debtors’s act. At the term to which he was bound to appear, he was called and answered, but not having given notice, and his surety failing to surrender him, judgment was rendered on the bond against the principal and his sureties, from which the defendant appealed to the Superior Court.

In the Superior Court, the cause being regularly reached, the debtor, Jervis Speight, was solemnly called, and, on failing to appear, judgment was rendered against his sureties to the appeal bond, from which they appealed to this Court.

Beitch, for plaintiff.

Troy, for defendant.

Battle, J.

There is not tbe slightest doubt that the judgment rendered in the County Court against the defendant and the surety on his appearance bond, was erroneous. Though the defendant had not given the notice of his intention to take the benefit of the insolvent oath, yet, as he appeared, no judgment could be rendered against him and his surety in the bond, because the surety was responsible only for his appearance. Watson v. Willis, 2 Ire. Rep. 17. This judgment, however, was vacated by the appeal from it to the Superior Court. The cause was then, by the appeal, properly constituted in the Superior Court, and was so treated by both parties. In that Court, it was as much the duty of the defendant to take the necessary steps for qualifying himself to take the benefit of the insolvent’s oath, as it had been while the case was in the County Court. Among other things which it was his ¡duty to do, he was bound to appear whenever he was called, in the regular business of the Court, and to take the oath, or, upon good cause shown, get a continuance of his suit until the nest term. This is clearly shown by the case of Wilkings v. Bingham, 3 Ire. Rep. 86. This, the defendant, upon being solemnly called, failed to do, whereupon the plaintiff became entitled to judgment against him and the sureties to his appeal bond, for the amount of the debt, interest and costs. Wilkings v. Bingham, ubi supra ; Williams v. Floyd, 5 Ire. Rep. 649.

PER CueiaM. Judgment affirmed.