Hightower Ex Rel. Hightower v. Thompson

57 S.E.2d 763 (1950) 231 N.C. 491

HIGHTOWER
v.
THOMPSON.

No. 22.

Supreme Court of North Carolina.

March 1, 1950.

E. F. Upchurch, D. E. Scarborough, Yanceyville, for plaintiff, appellant.

Long & Ross, Graham, for defendant, appellee.

SEAWELL, Justice.

The bail bond given by Thompson for the release of Hightower from custody pending the hearing appears from the evidence to have been an "appearance bond," presumably in the usual form, in the penal sum of $25.00. Upon its forfeiture by the nonappearance of the accused the bondsman thereby became obligated to the court in the sum of $25.00—the penal sum of the bond, no more, no less; and not for the fine or costs. 8 C.J.S., Bail, § 84, Current v. Church, 207 N.C. 658, 178 S.E. 82. The clear proceeds of this forfeiture are for the use of the public school fund; N.C.Constitution, Article IX, Sec. 5; and the "clear proceeds" have been judicially defined as the amount of the forfeit less the cost of collection, meaning thereby the citations and process against the bondsman usual in the practice. Board of Education v. High Point, 213 N.C. 636, 197 S.E. 191; State v. Maultsby, 139 N.C. 583, 51 S.E. 956.

In the case at bar there was no forfeiture declared by the court and no citation to the bondsman, Thompson, of any sort.

It is true that a bondsman may arrest the principal without process when necessary to have him in court in relief of his own liability while the appearance is still required; G.S. § 1-435. That, however, is foreign to the case at bar. The procurement of a capias against the plaintiff when he had the personal right of arrest without process, in exoneration of his liability on the bond, foreshadows the use to which the evidence tends to show the defendant put it. The evidence is not without its inferences that the defendant caused the plaintiff to pay him $52.00 under fear of arrest and imprisonment; an amount much in excess of the fine and costs, and seemingly representing the trouble and expense to which the bondsman was put in trying to find him,—a risk which he undertook when he went on the bond and not collectible in that way. It should have been submitted to the jury.

The judgment of nonsuit is reversed.

Reversed.