Opinion
(December Term, 1853.)
Where a bond is returned to Court, for the appearance of a person, under the act for the relief of insolvent debtors, with A, B, and C, as his sureties, and such person and his sureties are discharged from "all liability on his bond," and a record made of such discharge, and the defendant in the execution gives a new bond for his appearance further at Court, with A and D as his sureties, and the case was then continued for three terms, when a judgment was entered against A, B, and C: HELD, that such judgment was irregular and invalid.
Where an appeal was taken to the Superior Court from the judgment: HELD, that no judgment could be rendered on the bond given by A and B. HELD, also, that no judgment could be given on either bond against A singly, in the Superior Court, though he was on both bonds.
APPEAL from the Superior Court of Pasquotank, at Spring Term, 1853, his Honor Judge SAUNDERS, presiding.
Smith and Jordan, for plaintiff.
Poole, for defendants.
The plaintiff sued out a capias ad satisfaciendum against the defendant Morris, returnable to December Term. 1850, of Pasquotank County Court; which was returned with a bond for the defendant's appearance at that term, and the defendant appeared accordingly, and was surrendered by his sureties. He was ordered into custody, but appealed to the Superior Court, and gave bond for his appearance at the next term of the Superior Court; at that term the appeal was dismissed, as having been improvidently granted. A writ of procedendo was awarded to the County Court. The procedendo came down to the County Court, at June Term, 1851, when the following entry was made in the case, "dismissed by the plaintiff, and judgment against the plaintiff for costs."
Between the term of the Superior Court, at which the procedendo was ordered, and at June Term, 1851, of the County Court, the plaintiff sued out another ca. sa. against the defendant Morris, upon the same judgment, under which he was again arrested, and gave bond for his appearance at June Term, 1851, with Ehringhaus, Williams and Grandy as his sureties; at that time the following entry appears in the minutes of the Court: "Defendant and his sureties discharged by the plaintiff from all liability on his bond, for his appearance at this term of this Court. Defendant enters into bond with J. C. B. Ehringhaus and W. W. Griffin, as his sureties for his appearance at the next term of the Court. Case continued." The case was continued thence from term to term until March Term, 1852, when the following entry was made on the record: "The defendant being called, and failing to appear, and J. C. B. Ehringhaus, W. W. Williams. and J. J. Grandy failing to produce the body of Mordecai Morris, the defendant, on motion, judgment against said Morris and his sureties, on his appearance bond, $430 13 cents, to be discharged on the payment of $198 49-100, and $16 37, former costs, from which judgment Morris and his sureties, Ehringhaus, Williams and Grandy, appealed to the Superior Court. At Spring Term, 1853, Morris appeared, and the plaintiff moved for judgment against the appellants. which motion was refused by the Court.
The plaintiff then moved to be allowed to call the defendant, and take judgment against him and his sureties Ehringhaus and Griffin, on the bond given by them, which motion was also refused by the Court.
The plaintiff then moved for judgment against Morris and Ehringhaus, upon the bond given by Morris, Ehringhaus and Griffin, upon the ground that Ehringhaus was upon both the bonds given by Morris for his appearance in the County Court, which motion his Honor also refused.
Judgment against plaintiff for costs. Appeal.
It seems to us, that the plaintiff was not entitled to a judgment against the defendants, or any one or more of them, upon either of the motions which he submitted to the Court, and that his Honor was right in refusing each and all of them. Whether the defendant Morris was ever discharged from arrest, under a capias ad satisfaciendum by the plaintiff, so that he could not be taken in execution again, as contended by his counsel, we need not decide. Supposing the arrest on the 14th of May, 1851, proper, and the bond then given with the defendants Williams, Ehringhaus and Griffin, valid, the bond, in connection with the execution, was in the nature of process to compel an appearance to answer at the next term of the County Court. WINSLOW v. ANDERSON, 4 Dev. and Bat., 9. At that term, the proceedings against them were discontinued by the plaintiff himself, and a new bond was taken from the debtor, with other sureties, for his appearance at the next succeeding term. This proceeding, which was in the nature of a new suit, was kept in Court by regular continuances, until March Term, 1852, when the defendant, Morris, being called, and failing to appear, the plaintiff moved for judgment, not against the sureties on the last bond, who were in legal contemplation present in Court and ready to answer the motion, but against the sureties to the bond of May 1851, as to whom the plaintiff had discontinued his suit nine months before, and who were therefore not before the Court, to have a judgment rendered against them. That judgment was therefore irregular, and ought not to have been given. WINSLOW v. ANDERSON, ubi supra. From it, the defendants had good reason for an appeal, and the Judge, who presided in the Superior Court, very properly refused to affirm it. The plaintiff then moved for judgment against the principal and sureties to the last bond, and that was also refused, for the very sufficient reason, that the bond, or rather the parties to it, were not before the Court. Certainly the appeal in the first suit or proceeding, did not take up the second suit for proceeding, which was entirely distinct from it. If the two first motions were properly refused. unquestionably the last was, for no judgment could be given against Ehringhaus, except upon one or the other bond, and we have just declared, that no judgment could be rendered against the obligors to either of them.
The several motions of the plaintiff being refused, the judgment against him for costs was right, and must be affirmed.
Judgment affirmed.