Howzer v. Dellinger

• Decision Date: 30 June 1841
• Citation: 1 Ired. 475,23 N.C. 475
• Parties: ABRAHAM HOWZER v. MOSES DELLINGER.
• Court: North Carolina Supreme Court

1 Ired. 475

23 N.C. 475

ABRAHAM HOWZER

v.MOSES DELLINGER.

Supreme Court of North Carolina.

June Term, 1841.

Although the bail may surrender their principal, and the surrender be entered of record at the term when judgment is obtained, yet if the plaintiff does not pray the committal of the principal in execution and the latter should afterwards go at large, this is not a discharge of such principal from execution by the plaintiff.

The bail on a plea to a sci. fa. seeking to charge them, cannot take advantage of any irregularity in the ca. sa. against the principal, but they may shew that the ca. sa. is void.

A ca. sa. must strictly pursue the judgment and be warranted by it, as if the judgment be against two or more, the ca. sa. must issue against all--otherwise it is void.

The case of Findley vs. Smith, 3 Dev. Rep. 247, cited and approved.

This was an appeal from the judgment of Lincoln Superior Court of Law, at March Term, 1841, his Honor Judge MANLY presiding. The following is the case transmitted to the Supreme Court.

This was a scire facias against Moses Dellinger as bail of one Lawson Henry. Pleas, nul tiel record, surrender of one of the principals, Mary Henry, no capias ad satisfaciendum. One of the questions in this cause was, whether the paper introduced which purported to be a ca. sa. against Lawson Henry alone was a sufficient capias ad satisfaciendum to warrant the proceedings against the bail. A judgment in an action of trespass had been rendered against Lawson Henry and Mary Henry at Fall Term, 1839, at which term the defendant, Moses Dellinger, on Wednesday of the same term, brought into court Mary Henry, one of the defendants in the original suit, and surrendered her in discharge of himself as her bail. The following is a copy of the entry, which was all the evidence in the cause upon this question. “Moses Dellinger brought Mary Henry into court & surrendered her to the court in discharge of himself as bail of the said Mary Henry.” The defendant's counsel insisted that this entry shewed that Mary Henry, a co defendant in the original suit, had been in execution and permitted to go at large by the plaintiff, whereby the defendant was discharged as bail of Lawson Henry as well as of Mary Henry. The defendant's counsel further insisted that the ca. sa. being against Lawson Henry alone, when the judgment was against Lawson and Mary Henry, it was absolutely void, and therefore would not support the proceedings against the defendant as bail of the said Lawson. The court charged the jury that if one of two defendants were in execution and discharged or permitted to go at large by the consent of the plaintiff, it would amount to a discharge of the bail for the other defendant also, but that the entry upon the docket during the term at which the trial took place, “that the defendant Dellinger had surrendered Mary Henry in discharge of himself as her bail,” without any evidence that she was ever in execution, would not discharge the defendant Dellinger as bail of the said Lawson Henry. Also the court further ininstructed the jury, that regularly the capias ad satisfaciendum should follow the judgment, and where the judgment was against several defendants the execution should issue against them all, if living; but issuing the execution against one of the defendants, instead of both, as in this case, did not render the execution absolutely void ; that it was an irregularity, for which the court, at the instance of the defendant in the execution, might, and probably would, set aside the execution; but still the defendant Dellinger could not in this way avail himself of the irregularity, and that the paper constituted a sufficient ca. sa. to warrant the sci. fa. against the bail. Under this charge the jury found for the plaintiff, and the court adjudged there was such a record. A new trial having been moved for and refused, and judgment rendered for the plaintiff, the defendant appealed to the Supreme Court.

Boyden for the plaintiff . Execution may issue in some cases against one defendant alone. 2 Rolle's Ab. 468. Douglass v. White, Cro. Jac. 373. An irregularity in an execution can only be taken advantage of by the defendant in the execution. Jackson v. Bartlet, 8 John. Rep. 281--2 Tidd's Pr. 1044. Downey v. Dunn, 2 Bos. & Pul. 47. Gillespie v. White, 16 John. 117. Shirley v. Wright, 2 Ld. Ray 775. As to the surrender of the defendant Mary Henry, this being at the term when the judgment was rendered, the plaintiff could not pray her in execution; he could only have execution after the term expired, and then might take execution at his election against her goods or her body.

Wm. H. Haywood, jr. for defendant .

DANIEL, J.

The plaintiff sued Lawson Henry and Mary Henry in an action of Trespass. Dellinger became bail for...