THE plaintiff by warrant obtained a judgment on 23 October, 1819, against one Brack for $35.18 3/4 debt and 50 cents costs, and the defendant becamebail to the officer for Brack's appearance. On 29 October, 1819, aca. sa. issued against Brack, and on 1 December, 1819, the plaintiff sued out before a magistrate a notice in the nature of a scire facias against defendant, setting forth therein the recovery of the judgment aforesaid against Brack; that execution thereof remained to be had; that the defendant, on 21 October, 1819, became special bail for Brack, by a bond for that purpose duly executed by David Biddle, constable, upon the execution of the warrant; that the said Brack had not paid the said judgment nor rendered himself to prison; nor had the defendant surrendered him in discharge of himself, and requiring the defendant to appear before a magistrate and show cause why the plaintiff should not have execution against him for the debt and costs aforesaid. This notice was returned before a magistrate, "executed 26 January, 1820, when it was dismissed at the plaintiff's costs; from this judgment the plaintiff appealed to the county court, where the defendant appeared and pleaded." No capiasissued against principal; principal surrendered; payment; set-off; stat.lim.; and a judgment was in the county court rendered in favor of plaintiff, when the defendant appealed to the Superior (58) Court. At September Term, 1823, the cause came on and was argued, when the judge took time to consider; carried the papers with him on his circuit, and after the adjournment of the court returned them to the clerk indorsed, "My opinion is that the judgment ought to be entered for the plaintiff." Upon this execution issued against defendant, and at the next court he, by his attorney, moved to set aside the execution, which was done. The plaintiff, by his counsel, then moved that upon the indorsement of the judge who presided at the last term a judgment be entered up against defendant, which was done; and from this judgment he appealed to this Court.
HALL, J.
It appears that the defendant pleaded certain pleas in the county court in discharge of himself as bail, but how those pleas have *Page 30 been disposed of does not appear. I think that should have appeared before judgment was given against the defendant in the Superior Court.
Another objection presents itself in this case. A ca. sa. issued against the body of the debtor 29 October, 1819, and the sci. fa. issued against the bail on the 1 December of the same year. By the act of 1803, ch. 627, sec. 6, all executions issued by a justice of the peace shall be made returnable in three months from the date of said execution. The officer might execute it as soon as he could; but the Legislature prescribed that time with which it was his duty to endeavor to execute it, and he was not at liberty to return it unexecuted in a shorter time. This has been done in the present case; and if an officer is at liberty to return it in one month, he may return it in one week or in one day.
The object of the Legislature was to make the burden of the (59) debt fall upon the debtor, if he could be reached in this way, and only to have recourse against the bail in case that mode of proceeding against the principal proved unsuccessful. For these reasons I think the judgment given in the Superior Court should be reversed.
And of this opinion was the rest of the Court.
PER CURIAM. Reversed.
Cited: Tyson v. Short, 50 N.C. 281.