Deviney v. . Wells

26 N.C. 30

• Court: Supreme Court of North Carolina
• Decided: December 5, 1843
• Status: Published

Opinion

DaNiel, J.

The act of Assembly (Rev. Stat. c. 65, s. 16) declares, that “ no scire facias shall be issued out or prosecuted against the bail of any defendant to any writ or action, <fcc., but within four years after the rendition of a final judgment, or the entering of a final decree in the action or suit, to which bail is or shall be given.” Then follow in the act two provisoes. The plaintiff’s case is not embraced in either of them. More than four years had run, from the date of the judgment against Crow, the principal, to the issuing of this scire facias against the bail. The time, which elapsed pending the first scire facias, we think ought not to have been stricken out of the computation ; because the first scire facias was not determined against the plaintiff, “ either by nonsuit, arrest of judgment or reversal for error,” the only cases mentioned in the 17th section of the act, to prevent time from running in favor of the bail. There must be a new trial.

Per Curiam, New trial awarded.