The plaintiff sued out a capias ad respondendum against James T. Foster, returnable to Spring Term, 1858, of Montgomery Superior Court, which came to the hands of Winbourne, Sheriff of Guilford County, and by him was executed and returned to that term, and a bail bond filed. At that term the following entry was made on the record: "The plaintiff excepts to the bail for Foster taken by the sheriff of Guilford." Winbourne remained in office until August, 1858. In April a paper was mailed for him by the clerk of Montgomery Superior Court, directed "To the sheriff of Guilford County," informing him that he was looked to as special bail in the case of Worth v. Foster. No return was made of this paper, nor did it appear that he ever received it. The plaintiff then took no other steps against Winbourne until he had recovered judgment against Foster, which was at Special Term, June, 1859. He then issued the notice on which this motion is made, and had the same made known to him on 6 August, 1859, and (432) returned to Fall Term, 1859.
The court being of opinion that these proceedings by the plaintiff were not sufficient to give the sheriff due notice, refused the motion to charge him as special bail, from which judgment the plaintiff appealed. It is very clear, upon a consideration of the statute, Rev. Code, ch. 11, sec. 1, that to fix the sheriff as special bail, when he has returned a bond which is excepted to, there must be a judgment of the court upon the exception, after "due notice" to the sheriff; and we think it is also clear that the necessary inquiry should be prosecuted to judgment upon the exception and notice as upon process, according to the course of the court.
The sheriff is entitled to the judgment of the court at an early day, that he may, if needful, protect himself from or discontinue his responsibility. The sheriff's authority as bail in such case springs out of the *Page 334 judgment of the court, and has no prior existence. Should he arrest again before the judgment it would be unlawful.
Hence, we hold, upon exception to bail, there must be a notice making the sheriff a party to future proceedings, a judgment declaring the insufficiency of the bond, and declaring the sheriff to be special bail, before he is chargeable as such.
The necessity for prosecuting the exception to judgment seems to have been in the mind of the plaintiff's attorney when, subsequently to the judgment in the original action, proceedings were had against the sheriff. They are in all respects regular, but, as we think, are too late.
It will be perceived by a reference to the facts of the case that the original action was commenced to Spring Term, 1858. At that term exception was taken, and an order for notice to issue. An (433) ineffectual attempt was made to notify, and then a discontinuance of further proceedings against the sheriff until after the judgment in the original action in June, 1859. After this judgment notice to the sheriff was issued and executed, and, thereupon, the sheriff appeared and resisted the motion to declare him special bail upon the plea of a want of "due notice."
We concur with the court below in its conclusion upon this state of facts, that due notice was not given. It must be in time to enable the sheriff to have the earliest possible judgment of the court upon the exception; that is, it must be returnable to the next term after the exception is made, and subsequent proceedings should be, as stated before, according to the course of the court. Notice after a year had elapsed was not reasonable notice of the plaintiff's purpose, and therefore not such as was "due."
PER CURIAM. Affirmed.