Opinion
(December Term, 1855.)
A bond, taken by the sheriff on executing a writ, payable to him as sheriff in double the amount of the sum claimed in the writ, and conditioned for the defendant to appear at c., "to answer the plaintiff in a case of damages four thousand five hundred dollars, and then and there to stand to and abide by the judgment of the Court," is a bail-bond.
The plaintiff having failed to except to a bail-bond or to notify the sheriff that he holds him liable as special bail, cannot subject him as special bail.
THIS was a scire facias against the defendant as sheriff of Cumberland, to subject him as special bail, tried before his Honor, JUDGE ELLIS, at the last Superior Court of Cumberland.
Haughton, for plaintiff.
Reid and Shepherd, for defendant.
In a case in the County Court of Cumberland, wherein James H. Watt was plaintiff, and Solomon McCullough and Taliaferro Hunter were defendants, returnable to March Term, 1851, the defendant, who was sheriff of that county, having taken the defendants, returned with the writ the following writing in the form of a bond, which he insisted, and still insists, was, and is, a bail-bond properly taken and applicable to the writ which he executed, viz:
"State of North Carolina, Cumberland County.
"We and each of us do acknowledge ourselves indebted to Alexander Johnston, sheriff, in the sum of nine thousand dollars current money of the State, to be levied on our goods and chattels, land and tenements, but to be void on condition that the above bounden Solomon McCullough and Taliaferro Hunter do make their personal appearances at the next Court of Please and Quarter Sessions to be held for the county of Cumberland, at the court-house in Fayetteville, on the first Monday in March next, to answer James H. Watt in a case to his damages four thousand five hundred dollars, and there to stand to and abide the judgment of the said Court, and not depart the same without leave; then the above to be void, otherwise to remain in full force and virtue."
Witness, c.
Which was duly assigned by the sheriff to the plaintiff.
There was no evidence that at the term to which the original writ was returnable, which is the term to which the above bond was returned with the writ, the plaintiff excepted to the bond filed, or notified the sheriff that he would be looked to as special bail.
The foregoing facts were submitted as a case agreed by counsel, with the further agreement, that if the Court should be of opinion that the bond filed was not in law a bail-bond, and that it was not necessary for plaintiff to enter exceptions thereto, at the return term of the original writ, then judgment should be rendered against the defendant. But if his Honor should be of opinion that the bond filed was in law a bail-bond, or that it was necessary for the plaintiff to except thereto at the return term of the original writ, then judgment should be rendered for the defendant.
Upon consideration of the case agreed, the Court, being of opinion with the defendant, gave judgment accordingly, from which the plaintiff appealed.
This is a scire facias against the defendant as special bail for Solomon McCullough and Taliaferro Hunter.
Upon executing the writ in the original suit, the defendant took the bond, a copy of which is set forth in the case. That bond, in the opinion of the Court, under the cases of Rhodes and Vaughan, 2 Hawks. 167, and Clark and Walker, 3 Ire. 181, is a bail-bond. The plaintiff, at the return term of the writ, deeming it not a bail-bond, did not except to it, nor notify the defendant. The Act under which the proceedings are had requires, that when a bail-bond is taken, and duly returned, "upon exception taken and entered at the same term to which such process shall be returnable, the sheriff, or other officer, having due notice thereof, shall be deemed and stand as special bail." The plaintiff having failed to except to the bond in due time, and, not having notified the defendant, cannot subject him as special bail.
No exception has been taken to the scire facias.
PER CURIAM. There is no error in the judgment below, and it is affirmed.