Finley v. . Smith , 14 N.C. 247 ( 1831 )

Plea — that the ca. sa. upon the judgment obtained by the plaintiff against Newton had not issued to the county of Buncombe, with an averment that Buncombe was the proper county to which the writ should have been directed.^* Replication that the ca. sa. had issued to the county of Lincoln, where Newton was domiciled, and which was the proper county to which the writ should have been directed. Issue was taken upon the facts pleaded in the replication, which was tried on the last circuit before his Honor, Daniel, J., at WILKES.

On the trial it appeared that Newton was a single man without a house or land; that he was a plasterer by trade, and went about the country procuring work where he could find it; that after his arrest he left Buncombe County and went to Lincoln, where he undertook to plaster a house, and remained for three weeks, when he left the State. (248) His Honor charged the jury that the proper county to which the ca. sa. should have been issued was that where Newton had a domicil, or had last resided; that if it was unknown to the plaintiff where his domicil was the law presumed it to be in the county where the original writ was executed, but that presumption might be rebutted; that if they were satisfied that Newton had abandoned Buncombe County and had gone to Lincoln to work at his trade, then it would not be proper to direct the ca.sa. to that county, but it should have issued to Lincoln; that if they thought Newton had entirely abandoned Buncombe when he left it for Lincoln, then a residence in the latter county of three weeks, together with the fact that the plaintiff was ignorant of his having left the State, would enable them, if they thought proper, to infer that Lincoln was the proper county.

A verdict was returned for the plaintiff, and the defendant appealed.

^* The 19th section of the Act of 1777 is as follows: "That all bail taken according to the directions of this act shall be deemed held and taken to be special bail, and as such liable to the recovery of the plaintiff; but the plaintiff, after final judgment, shall not take out execution against such bail until an execution be first returned that the defendant is not to be found in his proper county, and until a scire facias hath been made known to the bail, which scire facias shall not issue till such execution shall have been so returned; and after return of such execution against the principal, and scire facias against the bail, execution may issue against the principal and securities, or any of them, or any of their estates, unless the bail shall surrender the principal before the return of the first scire facias, or shall appear and plead upon the return thereof, any law, custom or practice to the contrary thereof in any wise notwithstanding." The question is, what is the proper county within the Act of 1777 (Rev., ch. 115, sec. 19) to which the ca. sa. shall issue before charging the bail?

In England it is the county in which the venue was laid. (Dudlow v.Watchorn, 16 East, 39.) And as that in transitory actions is at the election of the plaintiff, and need not be that in which the defendant lives, or was arrested, it seems, as Mr. Tidd remarks, that the ca. sa. is not intended there actually to cause an arrest of the principal, but rather to intimate to the bail to what species of execution the creditor means to resort. The purpose is not so much to take the body on the writ as to let the bail know that he must render the body. Hence it is only necessary to take effectual means of giving that notice, which is held to be by depositing the writ in some certain sheriff's office to which the bail can have recourse for inquiry, and that in which the action was laid has been the one selected in all cases.

We think, however, that our Legislature meant that and something more in our statute, and that the ca. sa. is required as well for the benefit of the bail as the plaintiff. The ca. sa. ought to be issued to the county where it may be executed by the actual arrest of (249) the defendant, if that can be done, and if that cannot be done, then to the county in which it will most probably give notice to the bail. For the words are not "in the proper county," but "if the defendant cannot be found in his proper county." This is prima facie the county in which the defendant was originally arrested, because his residence must be taken to have then been there, because it is presumed the bail reside there, and will get notice by the writ, because the plaintiff is not to be charged, at his peril, with the duty of taking notice of the defendant's change of residence; and because, in case the defendant leaves the State, or has no fixed residence in another county in the State, there is no other certain place to which the defendant can send his execution, and the law surely intended to give some certain one. This we take to be the principal point decided in Benton v. Duffy (Conf. Rep., 98), which is believed to have been followed ever since. But as I have before said, the execution required in our act was intended to be an effectual one. If sent into the county where the capias ad respondendum was served, it would not have that character in case the defendant had in fact removed from it. In that event it ought to go to the county where he then resides, provided the plaintiff has knowledge of it. There is no reason for obliging the plaintiff to know where the defendant lives. He has a right to presume, as against the bail, that his original county is yet his proper county until it be shown that he knows the contrary, or had reason to know it. Upon this point, therefore, the court now differs from Benton v. Duffy if in that case the demurrer to the rejoinder was sustained. The report is obscure, and it does not appear what judgment was directed to be given, nor do I understand what is meant in the latter part of the opinion, where it is said that the county of the arrest ought not to be departed from unless a return of the sheriff evinces that such county no longer continues to be his proper county. It is clear, however, in the admission that the original county is to be departed from where it satisfactorily appears that it no longer (250) continues to be the defendant's proper county. And I do not know how that could be more conclusively established than by a plea that at the time of issuing the ca. sa. to one county, the principal resided in another county and the plaintiff knew it, and an admission thereof by a general demurrer. We think in that case that the county of the defendant's present residence is "his proper county," and in that respect concur with the judge of the Superior Court.

But we think that court erred in saying that Lincoln was, or could be found by the jury upon the evidence to be, the proper county of Newton. The plea is, that there was no ca. sa. to Buncombe, in which Newton was first arrested. The replication is, that there was a ca. sa. to Lincoln, which was the domicil of Newton; and on this last point, to wit, the domicil and residence, the rejoinder takes issue. The evidence does not establish anything like a domicil. On the contrary it proves that Lincoln was not Newton's place of residence — home. He had, in truth, no place of residence in North Carolina, certainly not in Lincoln. Without house, land, family, he wandered about the country seeking employment de die in diem, and only stayed three weeks in Lincoln for the temporary purpose of plastering a house. What rights as a citizen was he entitled to, or to what duties was he subject in that county? He could not vote; he was not liable to military duty, nor bound to repair the highways. He sojourned there, but did not reside there. It was not his county, and his stopping in that county was no more to the purposes of residence than boarding for a week, or putting up at a tavern for a night. He did not dwell there, nor did he purpose so to do. The judge of the Superior Court seems to have thought that the abandonment of Buncombe by Newton, and going into another county for any purpose, makes the former cease to be the proper county. Clearly not. It is not alone that he leaves Buncombe; for if he went out of the State, then there would be no proper county; nor that he goes into another, which makes the latter his proper county. For he must go there to inhabit and dwell, either for an indefinite period and for the general purposes of livelihood, or if for a (251) definite time, through the seasons of the year as an overseer or the like. But a mere casual employment in a job of a few weeks will not give him a domicil there, although he may not have one elsewhere. He is a citizen of the world — a mere bird of passage — not an inhabitant.

This is not like the case of one having no fixed residence, dying at a particular place, as to the purposes of administration and distribution. There the place of death must be taken, because there is no other. Here the converse is true. The accidental and occasional place of being is not taken because there is another certain place, namely, the county where the writ was served, which continues to be "his proper county" until some other is adopted as a fixed residence.

Cited: Howzer v. Dellinger, 23 N.C. 478; Ferrall v. Brickell, 27 N.C. 69;Jackson v. Hampton, 32 N.C. 598.