Bryan v. Brooks, 51 N.C. 580, 6 Jones 580 (1859)

Aug. 1859 · Supreme Court of North Carolina

51 N.C. 580, 6 Jones 580

GIDEON H. BRYAN v. WILLIAM A. BROOKS.

Where a defendant gave a bond under the insolvent act, and while he is' at large by virtue thereof, he is not entitled to his discharge on account of the fact that the ca. sa. is voidable; nor can lie move, under such circumstances, to quash the proceedings on that account.

ArncAL from an oudee in the Superior Court of Ashe-, made by his Honor, Judge IIeatii, committing the defendant to custody, under proceedings in insolvonsy.

The defendant had been arrested on a capias ad satisfacien-dum, at the instance of the plaintiff, issued by a single justice on a j ndgment rendered by another magistrate, and had given bond pursuant to the provisions of the Revised Code, chap. 59, sec. 6, for his appearance at the next court, and having made his appearance, the plaintiff moved that the defendant he imprisoned, he not having given any notice of his intention to take the oath of insolvency. The defendant opposed the motion, and moved for his discharge upon the' ground that the judgment, upon which the ca. sa. issued, had! been standing without any execution issuing thereon, for more than a year and a day. It was held by his Honor, in the Superior Court, (to which the case came by appeal,) that the execution could not be successfully attacked in this collateral way — that the execution justified the proceedings until regularly set aside, which could not be done in this mode. The defendant was thereupon ordered into custody,, from which judgment he appealed to the Supreme Court.

Grumpier, for the plaintiff.

Weal, for the defendant.

Battle, J.

An execution which issues on a dormant judgment, is not void, but only voidable; Oxley v. Mizle, 3 Murph. Rep. 250; Brown v. Long, 1 Ired. Eq. 190. When the defendant in the present case was arrested on the execution which had been issued on the justice’s judgment more than a year and a day after it bad been rendered, and bad given a bond witb tbe view of taking tbe benefit of tbe act for tbe relief of insolvent debtors, be might bave been relieved from arrest upon a writ of habeas corpus; or, perhaps, upon placing himself again in actual custody, be might bave moved tbe county court to quash tbe proceedings, and discharge him. Dobbin v. Gaster, 4 Ired. Rep. 71. But while be remained at liberty, by virtue of the bond which be bad given for bis appearance at tbe county court, be could not be beard to make objections to tbe regularity of tbe execution under which be bad been taken. That execution, together witb tbe bond, was in the nature of process to compel an appearance to answer at tbe next term of the county Court; Winslow v. Anderson, 4 Dev. and Bat. Rep. 9; Cohoon v. Morris, 1 Jones’ Rep. 218, If tbe defendant bad taken tbe proper steps to avail himself of tbe benefit of the insolvent act, tbe plaintiff could not bave objected that tbe execution under which be was arrested, was irregular, and be ought not to be allowed to-make tbe objection while be was availing himself of tbe liberty which his giving bond bad afforded him. His Honor, in tbe Court below, was, therefore, right in overruling tbe, defendant’s objection, and ordering him to be imprisoned until be should comply witb the requisitions of tbe act, of tbe benefits of wbieb be was seeking to avail himself.

Pee CueiaM, Judgment affirmed.