Adrian & Vollers v. Scanlin

77 N.C. 317

• Court: Supreme Court of North Carolina
• Decided: June 5, 1877
• Status: Published

Opinion

Reade, J.

The question is, whether bail in a civil action is exonerated by the fact that the principal is indicted, convicted and imprisoned for a crime,subsequent to the date of the bail’s undertaking, without regard to the fact that the term of imprisonment had expired before judgment in the civil action against the bail.

Formerly when the. Sheriff returned upon a sci. fa. in a civil case, that‘the principal was in prison by virtue of any process, civil or criminal, and the principal was then actually in prison, this should, if then pleaded by the bail, be deemed a surrender of the principal and a discharge of the bail. Rev. Code, ch. 11, § 7. Our present statute is substantially the same and must have the same construction. It provides that “the bail may be exonerated either by the death of the. defendant, or his imprisonment in a State prison, or by his legal discharge from his obligation to render himself amenable to the process, or by his surrender to the Sheriff of the County where he was arrested in execution thereof, at any time before final judgment against the bail.” C. C. P. § 161.

The defendant insists that the imprisonment of the principal had precisely the same effect as his death would have had. We do not think so. The statute does not mean that the bail shall be exonerated, merely because the principal shall have been put in the prison, but if he shall be-in prison at the time when the bail may be called to surrender- him. '

No error.

PER Curiam. Judgment affirmed.