Opinion
(June Term, 1834.)
The act of 1777 (Rev., ch. 115, sec. 69) makes the sheriff special bail when he neglects to return a bail bond, and to charge him as such no notice to him of his liability is necessary.
SCIRE FACIAS against the defendant, the sheriff of Randolph, seeking to charge him as special bail of one Joshua Cox, whom he had arrested, and discharged without taking bail. The sci. fa. set forth the judgment in favor of the plaintiff against Cox, the fact that it remained unsatisfied, and that the sheriff had not returned a bail bond with the writ, but it did not set forth the issuing of a ca. sa. against Cox, and a return of non est inventus.
Winston and Mendenhall for the defendant, in this Court moved in arrest of judgment, because the sci. fa. did not aver the issuing of a ca. sa. and a return of non est inventus.
Nash for the plaintiffs.
PLEA — 1st. Nul tiel record. 2d. That at the return term of the writ against Cox, no exception for want of bail was taken by the plaintiffs, and no notice given to the defendant to justify, or that he was held to be responsible as bail.
The plaintiffs took issue on the first plea, and demurred generally to the second. Norwood, J., at RANDOLPH, on the last circuit sustained the demurrer, and the issue in fact being found for the plaintiffs, judgment was entered according to the sci. fa., and the defendant appealed.
The defendant contends that the plaintiff's demurrer to his special plea should have been overruled, because, he says, section 79, ch. 2, Laws 1777 (Rev., ch. 115) subjects the sheriff as special bail only on certain conditions, one of which is that when he shall arrest any person on a bailable writ, and shall fail to take a bail bond and return the same with the writ, then he shall be held, and deemed special bail on the plaintiffs' giving him notice that he looked to him and considered him (476) special bail; otherwise he is not special bail.
24 State Records, 69.
We cannot give such a construction to that section as the defendant contends for. The section contemplates making the sheriff special bail in two cases: first, when he has not taken any bail bond; secondly, when he has taken insufficient bail, and exception shall be taken thereto the same term the writ is returnable, and notice given that term to the sheriff to justify, and he does not justify, then he becomes special bail. When the sheriff fails to take any bail bond, he is special bail himself, without any other notice than that which he receives from the law. There is a proviso which enables the defendant to put in new bail before the time given him to plead has expired, and then the sheriff is discharged, and also authorizing the sheriff to surrender in discharge of himself. When the sheriff has not taken any bail bond, he is not entitled to any notice from the plaintiff in order to subject him as bail. This point has been decided by this Court after an objection similar to the one now made. Governor v. Jones, 9 N.C. 363. We think the demurrer was properly sustained by the court.
Secondly. The defendant in this Court moves in arrest of judgment, because the scire facias does not recite that a ca. sa. had issued on the judgment, and had been returned non est inventus. He contends that, as the act of Assembly expressly requires a ca. sa. shall issue and be returned before a scire facias shall go against the bail, it is necessary that it should be recited in the scire facias.
In England, the scire facias only recites the recognizance of bail and the judgment against, the principal, and that he has not paid it or rendered himself; it does not recite the ca. sa. or the return of non est inventus. Archb. Appdx., 253, 554. If the ca. sa. has not issued, or has not been returned non est inventus, the defendant must take advantage of the omission by a special plea. Lutw., 1825, 1 Archb. Prac. B. K., 319; Philpot v. Manuel, 16 Eng. C. L., 244. He cannot take the objection on the plea of nul tiel record, for that refers only to (477) the record of the judgment. Handy v. Richardson, 3 N.C. 138. In England, the practice is to issue the ca. sa. and lodge it in the sheriff's office, where it must be the four last days exclusively before the return. The sheriff then returns non est inventus as a matter of course, without making any attempt to arrest the defendant, the ca. sa. being intended merely as a notice to the bail of the plaintiff's intentions to proceed against them. Hunt v. Cox, 3 Bur., 360; Archb. P., 320. The act of 1777, which requires that a ca. sa. shall issue against the principal, and be returned non est inventus before a scire facias shall issue against the bail, is to be considered only as re-enacting the rule and practice in the English Courts, with this exception, that the sheriff must make a diligent effort to execute the ca. sa. It has been determined in this State that it is not necessary to recite the ca. sa. against the principal in a scire facias against the bail. Langdon v. Troy, 3 N.C. 15; Arrenton v. Jordan, 11 N.C. 98. We are of the opinion that the motion in arrest of judgment should be overruled, and that the judgment of the Superior Court should be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Trice v. Turrentine, 32 N.C. 551.