Adams v. Jones, 60 N.C. 199, 1 Win. 199 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 199, 1 Win. 199

THOMAS ADAMS vs. RICHARD M. JONES.

J f the sheriff fails to take bail, the plaintiff need not file exceptions nor give notice to fix him as bail. . ■

And the sheriff is said to fail to take bail when the paper returned by him as a bail bond is so defective and imperfect as to be adjudged not to b'e such.

This was a Fiera Facias to charge the defendant as se-®-eial bail of one Campbell tried before Osborne, Judge, at Fall Term of Orange Superior Court 1862, upon the following statement of facts agreed on. by the parties.

The plaintiff brought an action against one Compel! and one'Jackson, in Orange Courfy Court, and the defendant being the sheriff of that county, arrest;.,1 Campbell and Jackscn by virtue of the writ, who together with one Hedgpeth under their hands and seals executed an instrument of writing which is set out in Hie report of the case of Adams ví. IXedgpoih, 5 Jones, 327, and which was returned to the County Court by the .defendant as a bail bond. After the judgment obtained in the original suit, Campbell left the state, and Jackson, the other defendant, being insolvent, thq plaintiff, sued out a Fi Fa against iledgpcth as hail and it was decided that the aforesaid paper writing is not a bail bond.' This suit was then commenced. No, exception was taken to tiro said paper writing as a hail bond at the return term of the writ in the original suit, or at any other time, and no notice was given to the defendant respecting the matter Of hail or the insufficiency of the paper as a bail bond. Judgment was given for the plaintiff. ■

Graham, for the plaintiff.

No counsel for the defendant in this court,

Uatilk, J.

The sheriff or other officer who arrests a defendant by virtue of a writ in a civil case will, according to the provisions of the revised code. ch. 11, sec. 1. become special bail for the party arrested, whenever he shall fail either to take a bail bond, or the bail returned be held insufficient on exception taken and entered tbe same term to wliich such process shall be returnable, and due notice thereof given to the officer. The oxc'-pfion and notice are clearly not required where no bail is taken at all: and a paper though intended as a bail bond, which is so defective and imperfect as to he adjudged not to be such, cannot be regarded as the taking of bail.

It follows that the sheriff or other officer who return.' such a paper instead of a proper bail bond, must be held as special bail, though no exception were taken nor nod'» given. See Adams vs Hedgepeth, 5 Jones 327.

The judgment uusl be affirmed.