Huggins v. . Fonville , 14 N.C. 392 ( 1832 )

The only question in the cause arose upon plea puis darrein continuance, filed by the defendant, the substance of which was that Eslick had surrendered himself in exoneration of the defendant as his bail, and had been committed to the public jail, where he remained until discharged under the insolvent debtors' act, of all of which the plaintiff had notice.

On the trial, before Martin, J., on the last circuit, the plea was fully supported by the evidence, but it appeared that at the time of the surrender and discharge of Eslick the defendant was still sheriff of Onslow.

The presiding judge informed the jury that if they believed the defendant elected to hold Eslick in custody as sheriff after the arrest, and had notified the plaintiff thereof, that it was in law a (393) bar to the action.

A verdict was returned for the defendant, and the plaintiff appealed. after stating the plea and evidence as above, proceeded: It is evident that our Legislature intended to allow to bail greater privileges than were afforded by the common law. By the Act of 1777 (Rev., ch. 115, sec. 20), a surrender made at any time before final judgment against the bail discharges them. The same act allows a surrender to be made either in court or to the sheriff in the recess of the court, and when the bail pleads a surrender, he should set forth whether the surrender was in court or to the sheriff, that the plaintiff may know how to reply, for if it be alleged that the surrender was in court, the replication is nul tiel record; if out of court, the fact is denied, and an issue to the jury tendered. The defendant, as bail in this case, surrendered his principal to himself as sheriff, and in the latter character, committed him to the common jail of the county. He gave express notice of all these facts to the plaintiff. The defendant had the same privileges as any other person who should happen to be bail. He had a right as bail to surrender his principal to himself as sheriff, in the recess of the court, and notify the plaintiff. The law, in permitting the sheriff to be special bail, did not intend to deprive him of any of the rights which are allowed to other bail. Woeful would be the situation of sheriffs in this State if the law was otherwise, for it is a well known fact that they are the special bail of a large number of the defendants arrested on writs ofcapias ad respondendum. After the defendant had confined his principal in his jail, if an escape had taken place, we can see nothing to prevent the plaintiff from maintaining an action for that escape against the defendant as sheriff. The principle of law that one who is bail may surrender to himself as sheriff is not controverted in any of the (394) cases on the subject. It appears to be recognized in Davidson v. Mull, 1 Hay., 364, and Tuton v. Sheriff of Wake, 1 Hay., 486.

If the surrender was properly made, and from the finding of the jury under the correct charge of the court we think it was, then if the prisoner was discharged illegally, the remedy cannot be by sci. fa., but must be by an action of debt, or on the case against the defendant, as sheriff, for an escape. Therefore, it is unnecessary to consider whether Eslick was discharged legally or not, as the plaintiff cannot recover if the discharge was improper.

PER CURIAM. Judgment affirmed.

Cited: Troy v. Williamson, 18 N.C. 253; Blue v. Blue, 79 N.C. 73.