Opinion
(December Term, 1842.)
1. On motion for a judgment against the sureties in the bond of a debtor, given under the insolvent debtor's law, It was objected that the christian names of the plaintiffs were not inserted in either the warrant, judgment or ca. sa.: Held, that this was not a valid objection, as the imperfection was cured after judgment by our Statute of Amendments, and the ca. sa. properly pursued the judgment, and gave the officer authority to make the arrest and take the bond.
2. It was objected, secondly, that the bond was not made to the plaintiffs by their christian names. This objection also overruled, because the officer literally pursued the Statute in taking the bond, and the averment of the plaintiffs' christian names in the motion is equivalent to a similar averment in a declaration in debt on such a bond.
APPEAL from Dick, J., at Fall Term, 1842, of RICHMOND.
A warrant from a Justice of the Peace had been issued against the defendant, E. D. Jarrott, to answer the complaint of "Wall Holton, in a plea of debt," c. Upon the trial before the magistrate, judgment was given against the defendant (Jarrott) for the amount claimed. Upon this judgment a ca. sa. issued. Neither the judgment nor ca. sa. mentioned the christian names of the plaintiffs. The officer took a bond from Jarrott, under the provisions of the insolvent debtors act, for his his appearance at the County Court, etc., which bond was payable to "Wall Holton." The bond was signed by Jarrott and E. Love, the present defendants. From the judgment of the County Court in this case, the defendant appealed to the Superior Court. The cause coming on in the Superior Court, the following judgment was entered: "The warrant, the judgment therein, the writ of capias ad satisfaciendum, and the ca. sa. bond taken pursuant thereto, being produced and proved with the transcript of the record from the Court of Pleas (43) and Quarter Sessions filed in this case, the plaintiffs, Stephen Wall and John B. Holton, partners in trade, trading under the name and style of Wall Holton, moved to have proclamation made, and the defendant, Edward, Jarrott, called preparatory to the trial of the issue made in this cause, which motion being granted and proclamation made at the door of the Courthouse, and the said Edward D. Jarrott being salemnly [solemnly] called three times, to make his personal appearance and having failed to appear, and proclamation having been made, and Erasmus Love, the other defendant, being called and required to produce the body of the said Edward D. Jarrott, and the said Edward not appearing, the plaintiffs moved to have judgment rendered for the penalty of the said bond against the said Jarrott and the said Love, to be discharged on the payment of said debt and costs. Whereupon, it is considered by the Court, that the said Stephen Wall and John B. Holton, trading under the firm and style of Wall Holton, recover of the said defendants, Edward D. Jarrott and Erasmus Love, the sum of $100.76 the penalty of the said bond, and that the said plaintiffs have judgment for the said sum, to be discharged on the payment of $50.38 principal money, with interest thereon from the 10 Feb., 1841, being the sum of $..... for debt and interest and the sum of $... for costs." A rule was granted to show cause why this judgment should not be set aside. The rule was discharged, and the defendants appealed to the Supreme Court.
Strange for the plaintiffs.
No counsel for the defendants.
The christian names of the two plaintiffs had not been inserted, either in the warrants, judgment or capias, which had been obtained against Jarrott. The first question raised, is, whether the constable had authority to arrest Jarrott under the ca. sa., so as to enable him, the said constable, to take this bond of the defendants under the insolvent act. Upon this question, we think no reasonable doubt can be entertained. Jarrott might have availed himself by a (44) plea in abatement, or by exception in the nature of a plea in abatement, of this defect in the warrant. But all imperfections of this sort were cured, after the judgment, by our Statute of Amendments — Revised Statutes, ch. 3. The judgment was a valid one, the writ of ca. sa. pursued the judgment, the officer was bound to execute the writ, and, on executing the writ, it became his duty to take the bond.
Secondly: When the motion was made for judgment by the plaintiffs, Stephen Wall and John B. Holton, it was resisted, because the bond was not made to them by their christian names. The Statute (Rev. Stat., c. 58, sec. 7) directs the constable to take the bond, "payable to the party at whose instance the arrest was made"; the names of the plaintiffs in the ca. sa. were "Wall and Holton"; he therefore literally complied with the Statute. The averment of the christian names in the declaration, if an action of debt had been brought on the bond, would have entitled the plaintiffs to offer in evidence the bond, in its present form, to maintain the declaration; parol evidence, in support of the averment, would neither have varied nor contradicted the bond. We think, that as the motion made in this case, contained the averment of the plaintiffs' christian and surnames, together with the name of the mercantile firm, expressed in the ca. sa. and bond, that there was not such a variance between the motion on record, and the bond taken by the constable, as to preclude the Court from giving judgment as prayed. The judgment must be
PER CURIAM. Affirmed.
Cited: Brooks v. Ratcliff, 33 N.C. 325; Lash v. Arnold, 53 N.C. 207; Heath v. Morgan, 117 N.C. 507; Daniels v. R. R., 158 N.C. 427.
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