Albemarle Steam Navigation Co. v. Williams

Supreme Court of North Carolina

Albemarle Steam Navigation Co. v. Williams

15 S.E. 877, 111 N.C. 35

DecidedSeptember 5, 1892

StatusPublished

This text of 15 S.E. 877 (Albemarle Steam Navigation Co. v. Williams) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Albemarle Steam Navigation Co. v. Williams, 15 S.E. 877, 111 N.C. 35 (N.C. 1892).

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Opinion

*36 Shepherd, J.:

The condition of the undertaking of bail is, “ that the defendant shall at all times render him self amenable to the process of the Court during the pendency of the action, and to such as may be issued to enforce the judgment therein.” The Code, section 299. In the absence of any statutory provision to the contrary, we would be inclined to hold with the plaintiff that the statute of limitations does not begin to run until a return of non est inventus is made on execution, the principle being, “ that the bail only guarantees that the debtor shall be forthcoming to respond to the execution, and do not become liable to pay the debt except upon failure in that respect. Consequently no right of action exists in favor of the creditor until it is ascertained that the debtor is not forthcoming upon the execution.” Wood Limitations, section 155. Our statute, however (The Code, section 155), express^ provides that proceedings against bail shall be barred unless commenced within three years after judgment against the principal. There can be no doubt as to the meaning of this language, and it must therefore follow that the motion of the plaintiff is barred by the statute of limitations. The fact of the debtor having left the State, cannot, under section 162 of The Code, prolong the liability of the bail.

Affirmed.

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*36 Shepherd, J.:

The condition of the undertaking of bail is, “ that the defendant shall at all times render him self amenable to the process of the Court during the pendency of the action, and to such as may be issued to enforce the judgment therein.” The Code, section 299. In the absence of any statutory provision to the contrary, we would be inclined to hold with the plaintiff that the statute of limitations does not begin to run until a return of non est inventus is made on execution, the principle being, “ that the bail only guarantees that the debtor shall be forthcoming to respond to the execution, and do not become liable to pay the debt except upon failure in that respect. Consequently no right of action exists in favor of the creditor until it is ascertained that the debtor is not forthcoming upon the execution.” Wood Limitations, section 155. Our statute, however (The Code, section 155), express^ provides that proceedings against bail shall be barred unless commenced within three years after judgment against the principal. There can be no doubt as to the meaning of this language, and it must therefore follow that the motion of the plaintiff is barred by the statute of limitations. The fact of the debtor having left the State, cannot, under section 162 of The Code, prolong the liability of the bail.

Affirmed.

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15 S.E. 877, 111 N.C. 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albemarle-steam-navigation-co-v-williams-nc-1892.