Opinion · Nclaw North Carolina

SPEIGHT v. WOOTEN, 14 N.C. 327 (1832)

14 N.C. 327

Type
Opinion
Court
Nclaw North Carolina
Jurisdiction
Nclaw
Date
1832-01-01
Topic
general

SPEIGHT v. WOOTEN, 14 N.C. 327 (1832) WILLIAM SPEIGHT v. WILLIAM WOOTEN.Supreme Court of North Carolina (June Term, 1832.) 1. Under the Act of 1822 (Rev., ch. 1131) for the relief of insolvent debtors, the sickness of the surety is no excuse for the default of the principal. 2. A summary judgment is properly rendered upon a bond given under the Act of 1810 (Rev., ch. 793) upon suing out a certiorari.

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UpLaw has not yet analyzed SPEIGHT v. WOOTEN, 14 N.C. 327 (1832). The absence of a flag is not a finding that it is good law.

SPEIGHTv. WOOTEN,14 N.C. 327(1832)
WILLIAM SPEIGHT v. WILLIAM WOOTEN.
Supreme Court of North Carolina
(June Term, 1832.)
1. Under the Act of 1822 (Rev., ch. 1131) for the relief of insolvent debtors, the sickness of the surety is no excuse for the default of the principal.

2. A summary judgment is properly rendered upon a bond given under the Act of 1810 (Rev., ch. 793) upon suing out acertiorari.
THE plaintiff had recovered a judgment in the county court of WAYNE against one Stancil, upon which aca. sa. issued. The defendant, under the Act of 1822 (Rev., ch. 1131), became the surety of Stancil for his appearance at the county court for the purpose of taking the insolvent debtor's oath. Stancil made default, and a judgment was rendered on the bond against him and the defendant for the amount of the debt. Afterwards the defendant sued out writs ofsupersedeasandcertiorari, and stated in his affidavit to procure them that after the execution of the bond, and before the return day of theca. sa., he, the defendant, was taken dangerously sick, and for that reason was unable to attend at the court and surrender Stancil. At the return of thecertiorari, before his Honor,Martin, J., on the last circuit, the writ was dismissed on thePage 268motion of the plaintiff, and judgment being rendered upon the bond given by the defendant under the Act of 1810, upon suing out the writ, he appealed.
Mordecai for plaintiff.

(328)Henry and Badger for defendant.
RUFFIN, J.
The counsel for the defendants properly yield that the judgment of the county court was right, and that the sickness of the surety was no sufficient ground for relief against that judgment. He bound himself for the appearance of the principal debtor. It is indeed his privilege to compel that appearance, if not voluntarily made. But that is between him and his principal; and if he cannot, either by reason of his own illness or the absconding or other fraud of the principal, the surety must submit to pay the debt.

It is, however, objected that there was error in the Superior Court in giving a summary judgment on the bond given for thecertiorari. The Act of 1810 (Rev., ch. 793) is not entirely perspicuous on this point, but the nature of the subject, as well as the words used, strongly incline us to the opinion that the bond is not only to be taken, but proceeded on "in the same manner and under the same regulations" as those given upon appeals. Thecertiorariis of the nature and in the place of the appeal; the bond is to be transmitted with the record, and a new judgment against the principal is in each case pronounced in the Superior Court. Why send the bond to the Superior Court if it is not to be acted on there? Why put the parties to a new suit when the plaintiff's demand has been finally and judicially ascertained, and the surety cannot discharge himself but by paying the debt? This view is confirmed by the general practice under the act for twenty years, during which period, with few exceptions, all the judges have given judgments on motion.

PER CURIAM. Judgment affirmed.

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