Arrenton v. Jordan.

From Perquimons.

A sheriff may, but he is not bound to insist upon two sureties to a bail' bond. It’ he take but one, and he is insufficient, the plaintiff may except: but the bond with but one is good, either on sci. fa. or in an action of debt

An assignment of the bail bond by the sheriff to the plaintiff, is not required when the suit is in the County Court: the 17th section of the act of 1777 is confined to the Superior Courts.

In a sci. fa. against bail, it is not necessary to state the issuing and return of a ca. sa. against the principal, though the want of such ca. sa. would be a defence for the bail.

This was a proceeding by Arrenton, as plaintiff in error, to reverse a judgment which Jordan had recovered against him in Perquimons County Court. Jordan had sued one Townsend Elliot in debt for §376, and Arrenton became bail for Elliot’s appearance, &c.

*99After judgment against Elliot in the County Court, at August term, 1822, a ca. sa. issued against Elliot, which was returned, 11 not to be found;” whereupon sci. fa. issued against the plaintiff in error as bail of Elliot. On the return of the writ, Arrenton appeared and pleaded, and at August term, 1823, a judgment was rendered against the plaintiff in error as bail, whereupon execution issued. On the 31st of October, 1823, Arrenton gave the defendants in error notice of an intended motion at November term, 1823, for a writ of error in the case; and at that term the writ was allowed, plaintiff having assigned for error — that the County Court found an issue of fact, to wit, that the bail bond was good; that the jury found an issue of law, to wit, that the judgment against Elliot, the principal, was not void: that the bail bond was taken for more than double the amount stated in the writ, and therefore void under the constitution; that there was but one security to the bail bond, and therefore, though debt at common law would lie, yet a sdrefcias under the statute would not; that the sci. fa. issued for the amount of the judgment against Elliot, when it should have issued for the amount of the penalty of the bail bond; that the sci. fa. does not aver that a writ of ca. sa. ever issued-to the proper county against Townsend Elliot, the principal, nor does it show that said writ wras returned “ not to be found;” that the sci. fa. does not aver the judgment against Elliot, the principal, to be unpaid, unreversed or uncancelled; that it does not appear to whom the said Ar-renton bound himself as bail for Elliot; that it does not appear from the sci. fa. that the bail bond was assigned by the sheriff to the plaintiff pursuant to the statute.

The defendant in error pleaded, in the Superior Court, a in millo est erratum,” and the Court, PaxtoN, Judge, held that there was error, and reversed the judgment of the County Court; whereupon the defendant in error appealed.

Hogg, for appellant.

L. Martin, contra-.

*100Tayiok, Chief Justice. —

It is necessary to notice but three of the errors assigned in this case, the others being sucl) as are either cured by the statute of Jeofail, or might have been availed of in an earlier stage of the proceeding. The sheriff having taken but one bail was at his own risk; and if that one was insufficient, the sheriff might-have been rendered liable upon exception taken thereto by the creditor in due time. The sheriff may, if he pleases, insist upon a bail bond with two sufficient securities, but he is not bound to do so; and this rule is equally applicable to a scire facias and an action of debt.

The assignment of a bail bond, by the sheriff to the plaintiff, is not necessary, when the suit is brought in the County Court. The provision of the act of 1777, ch. 17. is confined to the Superior Courts, and no similar one extends to the County Courts.

This sdre facias is informal; but it is no necessary part of a scire facias against bail to state the issuing and return of a ca. sa. against the principal. The want of a ca. sa. would be a defence for the bail, on the sci. fa. (Lutw. 1285.) and if one had not issued before the scire facias, it might be assigned for error. (Cro. Car. 481.) But in this ease it is stated, that a ca. sa. issued from the sessions where the judgment was recovered, and returned to the ensuing sessions “ not found.” There is, therefore, no sufficient reason to reverse the judgment.

Hade, Judge. —

In this case the parties are at issue upon the errors assigned. A motion is made by the defendant in error, under the act of 1824, ch. 5. to amend the record, and thereby cure the errors (if any there be) which have been assigned in the writ of error. What appeal's to me to be the true construction of that act, I have expressed in the case of Matlock v. Gray, &c. decided this term in this Court. If the Court from which the record comes could not grant the amendments now prayed for, after final judgment pronounced by it, this Court caauet permit them to be made.

*101Another objection is made to the time at which the writ .of error was sued out from the County Court, it being at a term subsequent to the one at which final judgment was obtained.

The act of 1777, ch. 115. sec. 76. declares, that when any person shall he desirous of prosecuting a writ of error, he shall move the County Court where such suit is, or hath been depending, for a W'rit of error. The 79th sec. declares, that if it shall so happen that there shall not be thirty days between the last day of the term or hear~ ing in the County Court, and the next term of the Superior Court to which such appeal shall be made, or writ of error allowed, a transcript of the record shall be filed in the Superior Court the term succeeding, &c. I recite this clause, because it appears to me that the party can only sue out a writ of error at the term at which judgment against him is finally given in the words of the act, all the last day of the term or hearing in the County Court.” In confirmation of this, the 80th sec. declares, «that in every County Court, &c. when any appeal shall be prayed, or writ of error allowed, the clerk of such Court shall make a record of the proceedings in such cause, and shall, within ten days after the final adjournment of the term in which the cause shall be heard, give an attested copy of such record, &c. to the appellant or plaintiff in error.” This clause, I think, incontestably limits the time of suing out writs of error from the County Courts to the term at which judgment shall be finally rendered.

Much inconvenience would attend the practice of suing them ouc at any indefinite period of time. No provision Is made for notifying the opposite party of the time of moving for them; and if they might be moved for at any time, the opposite party would have no day in Court; it might be done after the debt was discharged.

When application is intended to be made to the Supe-fiar Court, under the 47th, sec. of the act, in order to *102guard against surprise, provision is made for notifying the opposite party, which no doubt would have been done as t0 applications to the County Courts, if it had been intended that they might have been made at any indefinite period. I therefore think the County Court cannot grant writs of error at any term after the expiration of the one at which judgment is finally rendered. But, taking it for granted that the defendant is too late in availing himself of this objection, as issue has been joined on the errors assigned, it is necessary to consider of those errors. The one which states that, the bail bond was not assigned by the sheriff, would seem to be formidable, but it appears that the act of 1777, ch. 118. which speaks of.process returnable to the County Courts, does not require an assignment to be made by the sheriff. That assignment as error may, on that account, be got clear of. I also concur in opinion with my brethren, that the other errors assigned are not sufficient to reverse the judgment of the County Court.

By the Court, Judgment reversed.