Opinion
(December Term, 1828.)
A bond given under the Act of 1822 (Rev., ch. 1131) for the appearance of an insolvent to court, is good if it is for double the original debt, exclusive of interest and costs, and judgment, on motion, may be rendered on it.
Per HENDERSON, Judge — This Court, with all others, have gone too far in enforcing the rule that a bond required by a statute must in all respects conform to the regulations of that statute, otherwise it can be enforced only as a voluntary bond.
The plaintiffs obtained judgment before a magistrate, against the defendant, Thomas Yarborough, for the sum of $60.67 1/2. A ca. sa. issued thereon, and upon its being executed, the defendant gave bond under the act of 1822, payable to the plaintiffs in the sum of $121.35, with a condition to be void if the defendant Thomas should appear at the next term of the County Court.
W. H. Haywood for the plaintiffs
Badger, contra.
FROM FRANKLIN.
Default being made, judgment upon the bond was moved for, but the County Court disallowed the motion, and dismissed the proceedings, because the bond taken was not double the amount of the (13) debt, interests and costs. From this judgments the plaintiff's appealed to the Superior Court, when his Honor, Judge NORWOOD, affirmed the judgment of the Court below, and the plaintiffs appealed to this Court.
The exception taken by the defendant to this bond is not that it was taken in a sum larger than was authorized or required by law, or that it imposes on him other or greater obligations than the act of assembly justifies, but that the sum is less than it ought to be, it being for double the original debt, excluding both interest and costs, which he says ought to have been included. If we had been told that such exceptions were taken, we should naturally have expected that they were made on the part of him for whose benefit the sum was required to be thus large, that he might have a full indemnity for his debt, damages and costs; and should not for a moment have believed that he for whose ease, in case there was a loss, such diminution would operate favorably, had taken it. To allow this objection from the person who may be benefited by the omission, and cannot possibly sustain any injury, would be sacrificing the legislative will to something worse than mere form. For no person can doubt for whose benefit such regulation was made. Besides, since all our judgments now bear interest until paid, it is next to impossible to execute the law in its very words. No two men, where the calculation of interest is in any degree complicated; will agree to the fraction of a mill, or even to the fraction of a cent. But it may be said, have the penalty large enough, and then this objection is removed in such case the party may still object, and say that other and harder terms are imposed than the law authorizes, that the bond was extorted (14) from him, and he submitted to it to save a friend from jail. I am satisfied that almost all Courts, and this with others, have gone too far in enforcing the rule that a bond required by statute must in all respects conform to the regulations of the statute, otherwise it is void; or that it cannot be treated as a statute bond, but must be enforced, if at all, as a voluntary one. I perfectly agree that, in all essential points, the statute must be observed — that no other or greater obligations must be imposed by the bond than the statute authorizes. But I think that he who is called on to fulfil it cannot say that the bond is void, or even without the statute as to the obligations which the bond imposes, because there are other obligations which ought to have been on him, and which have been omitted. I cannot believe such to be a sound construction. Such objections, to be sure, might be made by him for whose benefit such omitted obligations ought to have been inserted. But I think it by no means follows that if the one party could reject it that the other is not bound by it. Quisque potest renunciare jure, pro se introducto.
PER CURIAM. Reversed, and judgment for plaintiffs.
Cited: White v. Miller, 20 N.C. 53.
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