We think it is discretionary with the Court to hear the excuse of the witness at the first Term, and that it is proper to do so, unless it be shewn that the State would receive some injury thereby; and in that case, the excuse ought not to be heard until the succeeding Term.
State v. Herndon, 5 N.C. 269, 1 Mur. 269 (1809)
July 1809
·
Supreme Court of North Carolina
5 N.C. 269, 1 Mur. 269
The State v. Herndon & Bledsoe.
From Wake.
A witness for the State who is called out upon his recognizance, and has judgment nisi, for the forfeiture, entered against him, may apply to the Court for a remission of the forfeiture before a scire facias issues against him.
. The Defendants were bound in recognizance to give qvidence in behalf of the State against George Evans, upon.an indictment in Wake County Court, and being called, failed to appear j whereby they incurred the forfeiture of twenty pounds each, and judgment nisi was entered against them. During the same term at which they were so called out, they came before the Court personally, and made application for a remission of said forfeiture. This application was opposed, ón the ground that there was no process before the Court authorising them to take cognizance( of this application, and that before'the. Court would hear the excuse of Defendants for their failure to attend, they must be brought in to answer upon a scire facias. The case /was referred to this Court, and