Perquimans County NcArchives Court.....Arrenton, V. Jordan 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 25, 2009, 8:40 pm

Source: Nc Reports Vol 11, 1897
Written: 1825

December Term 1825

ARRENTON v. JORDAN.

From Perquimons.

A sheriff may, but he is not bound to, insist upon two sureties to a bail 
bond. If he take but one, and he is insufficient, the plaintiff may except; 
but the bond with but one is good, either on sci. fa. or in an action of debt.

An assignment of the bail bond by the sheriff to the plaintiff, is not 
required when the suit is in the County Court; the 17th section of the act of 
1777 is confined to the Superior Courts.

In sci. fa. against bail, it is not necessary to state the issuing and return 
of a ca. sa. against the principal, though the want of such ca. sa. would be a 
defence for the bail.

This was a proceeding by Arrenton, as plaintiff in error, to reverse a 
judgment which Jordan had recovered against him in Perquimons County Court. 
Jordan had sued one Townsend Elliot in debt for $376, and Arrenton became bail 
for Elliot's appearance, &c.

After judgment against Elliot in the County Court, (99) at August term, 1822,a 
ca. sa. issued against Elliot, which was returned, "not to be found," 
whereupon sci. fa. issued against the plaintiff in error as bail of Elliot. On 
the return of the writ, Arrenton appeared an pleaded, and at August term, 
1823, a judgment was rendered against the plaintiff in error as bail, 
whereupon execution issued. On the 31st of October, 1823, Arrenion gave the 
defendants in error notice of an intended motion at November term, 1823, for a 
writ of error in the case; and at that term the writ was allowed, plaintiff 
having assigned for error — that the County Court found an issue of fact, to 
wit, that the bail bond was good; that the jury found an issue of law, to wit, 
that the judgment against Elliot, the principal, was not void; that the bail 
bond was taken for more than double the amount stated in the writ, and 
therefore void under the constitution; that there was but one security to the 
bail bond, and, therefore, though debt at common law would lie, yet a scire 
ficias under the statute would not, that the sci. fa. issued for the amount of 
the judgment against Elliot, when it should have issued for the amount of the 
penalty of the bail bond, that the sci. fa. does not aver a writ of ca. sa. 
ever issued to the proper county against Townsend Elliot, the principal, nor 
does it show that said writ was returned "not to be found;" that the sci. fa. 
does not aver the judgment agaist Elliot, the principal, to be unpaid, 
unreversed or uncancelled; that it does not appear to whom the said Arrenton 
bound himself as bail for Elliot; that it does not appear from the sci. fa. 
that the bail bond was assigned by the sheriff to the plaintiff pursuant to 
the statute.

The defendant in error pleaded, in the Supreme Court, "in nullo est erratum," 
and the Court, Paxton, Judge, held that there was error, and reversed the 
judgment of the County Court; whereupon the defendant in error appealed.

Hogg, for appellant. 
L. Martin, contra.

Taylor, Chief Justice.-It is necessary to notice (100) but three of the errors 
assigned in this case, the others being such as are either cured by the 
statute of Jeofail, or might have been availed of in an earlier stage of the 
proceeding. The sheriff having taken but one bail was at his own risk; and if 
that one was insufficient, the sheriff might have been rendered liable upon 
exception taken thereto by the creditor in due time. The sheriff may, if he 
pleases, insist upon a bail bond with two sufficient securities, but he is not 
bound to do so; and this rule is equally applicable to a scire facias and an 
action of debt.

The assignment of a bail bond, by the sheriff to the plaintiff, is not 
necessary, when the suit is brought in the County Court. The provision of the 
act of 1777, ch. 17, is confined to the Superior Courts, and no similar one 
extends to the County Courts.

This scire facias is informal; but it is no necessary part of a scire facias 
against bail to state the issuing and return of a ca. sa. against the 
principal. The want of a ca. sa. would be a defence for the bail, on the sci. 
fa. (Lutw., 1285), and if one had not issued befor the scire facias, it might 
be assigned for error. (Cro. Car., 481.) 

But in this case it is stated that a ca. sa. issued from the sessions where 
the judgment was recovered, and returned to the ensuing sessions "not found." 
There is, therefore, no sufficient reason to reverse the judgment.

Hall, Judge.—In this case the parties are at issue upon the errors assigned. A 
motion is made by ths defendant in error, under the act of 1824, ch. 5, to 
amend the record, and thereby cure the errors (if any there be) which have 
been assigned in the writ of error. What appears to me to be the true 
construction of that act, I have expressed in the case of Matlock v. Gray, 
&c., decided this term in this Court. If the Court from which the record comes 
could not grant the amendments now prayed for, after final judgment pronounced 
by it, this Court cannot permit them to be made.

Another objection is made to the time at which (101) the writ of error was 
sued out from the County Court, it being at a term subsequent to the one at 
which final judgment was obtained.

The act of 1777, ch. 115, sec. 76, declares, that when any person shall be 
desirous of prosecuting a writ of error, he shall move the County Court where 
such suit is, or hath been pending, for a writ of error. The 79th sec. 
declares, that if it shall so happen that there shall not be thirty days 
between the last day of the term or hearing in the County Court, and the next 
term of the Superior Court to which such appeal shall be made, or writ of 
error allowed, a transcript of the record shall be filed in the Superior Court 
the term succeeding, &c. I recite this clause, because it appears to me that 
the party can only sue out a writ of error at the term at which judgment 
against him is finally given in the words of the act, "all the last day of the 
term or hearing in the County Court." In confirmation of this, the 80th sec. 
declares, "that in every County Court, &c, when any appeal shall be prayed, or 
writ of error allowed, the clerk of such Court shall make a record of the 
proceedings in such cause, and shall, within ten days after the final 
adjournment of the term in which the cause shall be heard, give an attested 
copy of such record, &c., to the appellant or plaintiff in error." 

This clause, I think, incontestable limits the time of suing out writs of 
error from the County Courts to the term at which judgment shall be finally 
rendered.

Much inconvenience would attend the practice of suing them out at any 
indefinite period of time. No provision is made for notifying the opposite 
party of the time of moving for them; and if they might be moved for at any 
time, the opposite party would have no day in Court; it might be done after 
the debt was discharged.

When application is intended to be made to the Superior Court, under the 47th 
sec. of the act, in order to (102) guard against surprise, provision is made 
for notifying the opposite party, which no doubt would have been done as to 
applications to the County Courts if it had been intended that they might have 
been made at any indefinite period. 

I therefore think the County Court cannot grant writs of error at any term 
after the expiration of the one at which judgment is finally rendered. But, 
taking it for granted that the defendant is too late in availing himself of 
this objection, as issue has been joined on the errors assigned, it is 
necessary to consider of those errors. The one which states that the bail bond 
was not assigned by the sheriff, would seem to be formidable, but it appeals 
that the act of 1777, ch. 118, which speaks of process returnable to the 
County Courts, does not require an assignment to be made by the sheriff. That 
assignment as error may, on that account, be got clear of. I also concur in 
opinion with my brethren, that the other errors assigned are not sufficient to 
reverse the judgment of the County Court.

By the Court,

Judgment affirmed.

Approved. Gray v. Hoover, 15 N. C., 475; Cochran v. Wood, 29 N. C., 215; Trice 
v. Turrantine, 32 N. C., 543.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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