WiNBOBNE, J.
Upon plaintiff’s challenge to the judgment from which this appeal is taken, there arises this determinative question: Does a defendant in a criminal prosecution in a justice of the peace court of the State of North Carolina, who is a nonresident of the State, and who voluntarily deposits with the justice of the peace cash in lieu of bond for his appearance before the justice of the peace for a preliminary hearing, have such property right and interest in the deposit as is liable to attachment and garnishment at the instance of his creditor pending such preliminary hearing?
We are of opinion, and hold, that he does have such property right in the deposit.
The statutes and decisions of this Court are to the effect that a defendant in a criminal proceeding pending in the State, who is a nonresident of the State, is immune from personal service of process in a civil action arising out of the same facts as the criminal proceeding only when he is brought into the State by, or after waiver of extradition proceeding. See G.S. 15-79, G.S. 15-82, G.S. 8-65, and the recent case
Hare v. Hare,
228
N. C. 740, 46 S. E. (2) 840, where the subject is discussed in opinion by
Denny, J.
By the same token, if such defendant be immune from personal service of such process only under those circumstances, his property within the State would be immune from attachment and garnishment only when so ¡brought into the State by defendant. In the present case it does not appear that defendant, when arrested in Greensboro, N. C., had been brought into the State by, or after waiver of extradition proceeding. Hence the cash of defendant, which he voluntarily put up with the justice of the peace in lieu of bail or recognizance for his appearing to answer the charge on preliminary hearing, would not be immune from the process of attachment and garnishment, unless perchance, it be w'holly
in custodia legis,
that is, in the custody of the law.
So it becomes necessary to ascertain the relative positions of the justice of the peace, the State and the defendant in respect to the cash so put up or deposited by defendant in lieu of bond.
In this State any justice of the peace before wdiom persons charged with a misdemeanor or a felony, not capital, but who have not been committed to prison by an authorized magistrate, may be brought, has power to take bail. G.S. lñ-102. And if the offense charged in the warrant be not punishable with death, the justice of the peace may take from the person arrested a recognizance with sufficient sureties for his appearance at the next term of the court having jurisdiction, to be held in the county where the offense is alleged to have been committed. G.S. 15-105.
And the law contemplates that a defendant in a criminal prosecution may give security for his appearance to answer to the charge and the Court has held that the fact that defendant of his own volition, chooses to deposit the amount of the bond required in cash is not a violation of the statute, but a compliance with its spirit and meaning.
S. v. Mitchell,
151 N. C. 716, 66 S. E. 202. In the
Mitchell case,
in opinion by
Brown,
./.. it is stated : “The court could not compel the defendant to deposit cash or give security of any kind. He had the privilege to go to prison if he preferred.”
A recognizance is a debt of record acknowledged before a court of competent jurisdiction, with condition to do some particular thing. It binds the defendant to appear and answer to a specified charge, to stand and abide the judgment of the court and not to depart without leave of the court.
S. v. White,
164 N. C. 408, 79 S. E. 297.
Thus in this State a recognizance in a criminal proceeding is an acknowledgment by the defendant that he is indebted to the State of North Carolina in an amount fixed by the court, conditioned upon his personal appearance at a time and place specified by the court to answer the charge against him, to stand and abide the judgment of the court and not to
depart without leave of the court. And where cash is deposited by a defendant as security for his appearance, it remains his property subject to the conditions of a recognizance,—the justice of the peace becoming the custodian of the cash for the benefit of the State only in so far as the debt of defendant to the State is concerned. If defendant fails to perform the conditions, the deposit will be subject to forfeiture. But if he perforin the conditions, the cash deposit would be returnable to him. This is a right which he may enforce against the custodian of the deposit. It is a property right which existed in him.
The right of defendant in and to the cash deposit is similar to that of trustor in a deed of trust by which property is assigned or conveyed to a trustee as security for a debt to a third person. The trustor has an equity in the property assigned or conveyed. And when the debt is satisfied, whether by sale of the property assigned or conveyed, or otherwise, the residue or the whole, as the case may be, remaining in the bands of the trustee is to the use of the trustor, and he has the right to recover it. That is, as soon as the purposes of the deed in trust arc satisfied, there is but one equity remaining, and that is m the trustor, whose right to the residue can be enforced at law. This is a property right, liable to garnishment. See
Peace v. Jones,
7 N. C. 256.
And, applying the provisions of the statute G.S. 1-458, this Court holds that all property in this State, whether real or personal, tangible or intangible, owned by a nonresident, defendant in an action to recover on any of the causes of action included within the provisions of G.S. 1-440, under which the present action conies, is liable to attachment.
Newberry v. Fertilizer Co.,
203 N. C. 330, 166 S. E. 79. Moreover, the statutes G.S. 1-459 and G.S. 1-461,
et seq.,
provide for levy upon intangible property and prescribe the procedure against the garnishee in such cases.
Furthermore, the text writers say that it is settled law that, in general, property or funds
in custodia legis
are not subject to attachment or to garnishment, but that the authorities are not harmonious in their determinations as to when the rule applies; that it has been stated generally that property or money is deemed to be in the custody of the law when it is held to be disposed of in some particular manner prescribed by law, or according to orders of the court; and that garnishment has sometimes been recognized as a proper remedy for the purpose of acquiring a lien upon property in the custody of the law, though an actual seizure of the property after it has once come into the custody of the law is recognized as improper. 4 Am. Jur. 795. However, a creditor has been permitted to reach by garnishment money deposited with the clerk of a court, in pursuance of law, in place of an undertaking on appeal. 4 Am. Jur. 803.
Dunlop v. Patterson Fire Ins. Co.,
74 N. Y. 145. 30 Am. Rep. 283.
The
Dunlop case
is very similar to the one in hand.
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WiNBOBNE, J.
Upon plaintiff’s challenge to the judgment from which this appeal is taken, there arises this determinative question: Does a defendant in a criminal prosecution in a justice of the peace court of the State of North Carolina, who is a nonresident of the State, and who voluntarily deposits with the justice of the peace cash in lieu of bond for his appearance before the justice of the peace for a preliminary hearing, have such property right and interest in the deposit as is liable to attachment and garnishment at the instance of his creditor pending such preliminary hearing?
We are of opinion, and hold, that he does have such property right in the deposit.
The statutes and decisions of this Court are to the effect that a defendant in a criminal proceeding pending in the State, who is a nonresident of the State, is immune from personal service of process in a civil action arising out of the same facts as the criminal proceeding only when he is brought into the State by, or after waiver of extradition proceeding. See G.S. 15-79, G.S. 15-82, G.S. 8-65, and the recent case
Hare v. Hare,
228
N. C. 740, 46 S. E. (2) 840, where the subject is discussed in opinion by
Denny, J.
By the same token, if such defendant be immune from personal service of such process only under those circumstances, his property within the State would be immune from attachment and garnishment only when so ¡brought into the State by defendant. In the present case it does not appear that defendant, when arrested in Greensboro, N. C., had been brought into the State by, or after waiver of extradition proceeding. Hence the cash of defendant, which he voluntarily put up with the justice of the peace in lieu of bail or recognizance for his appearing to answer the charge on preliminary hearing, would not be immune from the process of attachment and garnishment, unless perchance, it be w'holly
in custodia legis,
that is, in the custody of the law.
So it becomes necessary to ascertain the relative positions of the justice of the peace, the State and the defendant in respect to the cash so put up or deposited by defendant in lieu of bond.
In this State any justice of the peace before wdiom persons charged with a misdemeanor or a felony, not capital, but who have not been committed to prison by an authorized magistrate, may be brought, has power to take bail. G.S. lñ-102. And if the offense charged in the warrant be not punishable with death, the justice of the peace may take from the person arrested a recognizance with sufficient sureties for his appearance at the next term of the court having jurisdiction, to be held in the county where the offense is alleged to have been committed. G.S. 15-105.
And the law contemplates that a defendant in a criminal prosecution may give security for his appearance to answer to the charge and the Court has held that the fact that defendant of his own volition, chooses to deposit the amount of the bond required in cash is not a violation of the statute, but a compliance with its spirit and meaning.
S. v. Mitchell,
151 N. C. 716, 66 S. E. 202. In the
Mitchell case,
in opinion by
Brown,
./.. it is stated : “The court could not compel the defendant to deposit cash or give security of any kind. He had the privilege to go to prison if he preferred.”
A recognizance is a debt of record acknowledged before a court of competent jurisdiction, with condition to do some particular thing. It binds the defendant to appear and answer to a specified charge, to stand and abide the judgment of the court and not to depart without leave of the court.
S. v. White,
164 N. C. 408, 79 S. E. 297.
Thus in this State a recognizance in a criminal proceeding is an acknowledgment by the defendant that he is indebted to the State of North Carolina in an amount fixed by the court, conditioned upon his personal appearance at a time and place specified by the court to answer the charge against him, to stand and abide the judgment of the court and not to
depart without leave of the court. And where cash is deposited by a defendant as security for his appearance, it remains his property subject to the conditions of a recognizance,—the justice of the peace becoming the custodian of the cash for the benefit of the State only in so far as the debt of defendant to the State is concerned. If defendant fails to perform the conditions, the deposit will be subject to forfeiture. But if he perforin the conditions, the cash deposit would be returnable to him. This is a right which he may enforce against the custodian of the deposit. It is a property right which existed in him.
The right of defendant in and to the cash deposit is similar to that of trustor in a deed of trust by which property is assigned or conveyed to a trustee as security for a debt to a third person. The trustor has an equity in the property assigned or conveyed. And when the debt is satisfied, whether by sale of the property assigned or conveyed, or otherwise, the residue or the whole, as the case may be, remaining in the bands of the trustee is to the use of the trustor, and he has the right to recover it. That is, as soon as the purposes of the deed in trust arc satisfied, there is but one equity remaining, and that is m the trustor, whose right to the residue can be enforced at law. This is a property right, liable to garnishment. See
Peace v. Jones,
7 N. C. 256.
And, applying the provisions of the statute G.S. 1-458, this Court holds that all property in this State, whether real or personal, tangible or intangible, owned by a nonresident, defendant in an action to recover on any of the causes of action included within the provisions of G.S. 1-440, under which the present action conies, is liable to attachment.
Newberry v. Fertilizer Co.,
203 N. C. 330, 166 S. E. 79. Moreover, the statutes G.S. 1-459 and G.S. 1-461,
et seq.,
provide for levy upon intangible property and prescribe the procedure against the garnishee in such cases.
Furthermore, the text writers say that it is settled law that, in general, property or funds
in custodia legis
are not subject to attachment or to garnishment, but that the authorities are not harmonious in their determinations as to when the rule applies; that it has been stated generally that property or money is deemed to be in the custody of the law when it is held to be disposed of in some particular manner prescribed by law, or according to orders of the court; and that garnishment has sometimes been recognized as a proper remedy for the purpose of acquiring a lien upon property in the custody of the law, though an actual seizure of the property after it has once come into the custody of the law is recognized as improper. 4 Am. Jur. 795. However, a creditor has been permitted to reach by garnishment money deposited with the clerk of a court, in pursuance of law, in place of an undertaking on appeal. 4 Am. Jur. 803.
Dunlop v. Patterson Fire Ins. Co.,
74 N. Y. 145. 30 Am. Rep. 283.
The
Dunlop case
is very similar to the one in hand. There attachments were levied upon $2,000 placed in the hands of the clerk of the city court of Brooklyn in lieu of an undertaking on appeal from a judgment in an action in favor of one Redfield against defendant. And motions were made to set aside the attachments. The Court of Appeals of the State of New York, in opinion by
Folger,
had this to say: “Doubtless the property which was, in fact, made the subject of the attachment, was in the custody of an officer of a court of record, and the appellant would at the time have had no right to remove it therefrom, or to meddle with it. But doubtless also, the appellant had a right and interest in that property, which was capable of being transferred by it, by its own act of assignment. Had it made an assignment of it, that act would not have removed it from the custody of the officer holding it, nor would it have put upon him any greater liability than he assumed by the primary reception of it. He was liable to hold it, to answer the event of the litigation of Redfield with the appellant, and to return to the latter all that was not required to answer the proper demand of the former. And after the litigation should have been over with Redfield, would not the clerk have been liable to the defendant for the whole or a
residuum
of the moneys, which liability could be enforced? And it was this last liability which would be the subject of the assignment ... It may be granted that no process should have been issued which commanded the taking actual possession of the property . . . But there was power to grant an attachment against the property of the appellant. The money in the hands of the clerk of the city court, or a residuary interest in it, was such property. The fund itself could not be taken away from him. It was the right to have from him, after the litigations with Redfield was ended, the whole or a residue of that money, which was such property. That right was not in the custody of that clerk, so that he could ever retain it, or, of right, pass it on to another. An attachment against the appellant’s property, levied upon that, took nothing out of the custody of the clerk, nor meddled with anything in his hands. It seized upon an intangible right, by means of the order of the Supreme Court and notice to the clerk of the issuance thereof. Such process and such action upon it made no conflict of jurisdiction between the two courts. The city court held the money, with a conceded right. The officer of the Supreme Court held the right to receive it, or some of it, from the clerk, when the city court should see fit to declare the purpose fully served for -which it took it into custody.” This opinion of the New York Court is sound in logic, and the reasoning there is appropriate to the case in hand.
Applying these principles to the case in hand, the right of defendant in the cash voluntarily deposited by him as security in lieu of bond for his appearance to answer the charge preferred against him, is liable to
garnishment; and the purposes for which the cash was deposited having been accomplished by defendant appearing, and later giving a new recognizance for his appearance in Superior Court, the clerk properly ruled that the entire amount of the deposit is subject to the lien of the attachment in this action.
For reasons stated, there is error in the judgment below, and the case is remanded to the end that judgment be entered in accordance with this opinion.
Error and remanded.