The plaintiff had obtained a judgment against the defendant before a justice of the peace, and caused a capias ad satisfaciendum to issue thereupon. The defendant gave bond for his appearance at May Term. *Page 17 1841, of Rowan County Court, to take the benefit of the act for the relief of insolvent debtors. He did not appear at May Term, but was absent from sickness, and the cause was continued on that account. No notice was given to the plaintiff of the defendant's intention to take the oath of an insolvent debtor before May Term, when the party was bound to appear. At August Term, to which the cause had been continued, the defendant appeared, and produced a notice served upon the plaintiff ten days before that term, and prayed that he might be permitted to take the oath of an insolvent debtor and be discharged. This was resisted by the plaintiff, upon the ground that notice should have been given before the first term at which he was to appear. The court was of opinion that the notice was sufficient, and permitted the defendant to take the oath, and thereupon he was discharged. The plaintiff prayed an appeal to the Superior Court, which was granted. The appeal came (18) on to be heard at Fall Term, 1841, of the Superior Court, when his Honor, being of opinion that notice should have been given ten days before May Term, when the defendant was bound to appear, and that the plaintiff had a right to appeal from the judgment of the county court, entered a judgment for the plaintiff against the defendant and the sureties in his bond. From this judgment the defendant prayed an appeal to the Supreme Court, which was granted. This judgment of the Superior Court consists of two parts. It first reverses that of the county court, upon the ground that the notice to the second term was not sufficient. Then the Superior Court, proceeding to give such judgment as, in the opinion of that court, the inferior court ought to have given, rendered a judgment against the defendant and his surety on the bond given to the constable, to be discharged by the payment of the plaintiff's debt, interest, and costs.
The opinion of this Court is that the statute for the relief of insolvent debtors, Rev. Stat., ch. 58, does not sustain the judgment of the Superior Court in either of its parts.
Though it should be admitted that the debtor was not entitled to take the oath of insolvency at the second term, for the want of a notice to the first term, yet it is clear that there could not be judgment on the bond. The surety binds himself. "for the appearance of the debtor at the court," and is liable only "in case of the failure to appear" of the principal (section 7). He does not engage that the debtor shall give notice or shall take the oath. On the contrary, section 9 authorizes the surety to surrender the principal, either to the officer or in court, and, to that end, *Page 18 vests the surety with the powers of special bail, and declares that the surrender shall discharge the surety. Consequently, if the surety brings in the body of the debtor, or, if the latter enters his appearance, (19) and subsequently makes no default, but is in court whenever duly demanded by the creditor, until the final adjudication of the case, the whole engagement of the surety is fulfilled. It is true, this debtor did not attend the first term. But that worked no forfeiture of the bond, because, in conformity with the second proviso of section 7, the court adjudged that he was in no default therefor, and gave him day to appear until the next term. In case the debtor does appear and then refuses to take the oath, or is unable so to do because he had not given the necessary notice, the act provides a remedy, not upon the bond, but against the debtor personally. For default of this last kind it is enacted (section 10) that the debtor, being thus in court, "shall be deemed in custody of the sheriff, and the court shall adjudge that he be imprisoned until he has given the necessary notice, which he may do at the next succeeding court." That adjudication, and, unless he shall pay the debt, the consequent imprisonment of the debtor, give to the creditor the full effect of the process against the debtor's body, and remove all ground for asking a judgment against the surety.
But we likewise think that, in this case, notice was given in due time, and that the debtor was properly admitted to his oath, and discharged in the county court. We do not think a debtor can wantonly or negligently defer giving notice. He is bound to do so before the first term, and to attend at that term, "unless prevented by sickness or other cause, to be judged of by the court." But if he be so prevented, the second proviso of section 7 enacts that the case shall be continued to the next court. From that it naturally follows that everything the party failed — for good excuse, allowed by the court — to do at or before the preceding might be done at or before the succeeding term. But the act proceeds, in the same sentence, explicitly to say that at the next term "the same proceedings shall be had as if he (the debtor) had appeared at the first term." The intention of the Legislature seems to have been, where a person is prevented by sickness, or other reasonable excuse allowed by the court, from doing all or anything that is requisite to entitle him to take the oath at the first term, that then the whole case shall be (20) continued, and the party have his day at the next term in the same manner as if the process were returnable thereto and the party had been bound from the first to appear thereat. In this case the court found that the debtor's omissions did not arise from his default, but from the act of God, and, therefore, the case was continued at the first term; and before the next the notice was given, and at that term the defendant duly appeared. *Page 19
The Judgment of the Superior Court is, therefore, erroneous, and must be reversed, and that of the county court affirmed.
PER CURIAM. Judgment accordingly.
Cited: Mears v. Speight, 49 N.C. 421.