Watt v. . Johnston

48 N.C. 124

• Court: Supreme Court of North Carolina
• Decided: December 5, 1855
• Status: Published

Opinion

NAsn, C. J.

This is a sovre facias against the defendant as special bail for Solomon McCullough and Taliaferro Hunter.

Upon executing the writ in the original suit, the defendant took the bond, a copy of which is set forth in the case. That bond, in the opinion of the Court, under the cases of Rhodes and Vaughan, 2 Hawks. 167, and Clark and Walker, 3 Ire. 181, is a bail-bond. The plaintiff, at the return term of the writ, deeming it not a bail-bond, did not except to it, nor notify the defendant. Hie Act under which the proceedings are had requires, that when a bail-bond is taken, and duly returned, “ upon exception taken and entered at the same term to which such process shall be returnable, the sheriff, or other officer, having due notice thereof, shall be deemed and stand as special bail.” The plaintiff having failed to except to the bond in due time, and, not having notified the defendant, cannot subject him as special bail.

No exception has been taken to the scire facias.

Pee Curiam.

There is no error, in tlie judgment ‘ below, and it is affirmed.