Remedies to recover Debts.

time that such writ shall be delivered to the sheriff or other of ficer to be executed. (a) From the day of delivery of such execution to the officer, the creditor acquires a lien upon the goods of the debtor, of which he cannot be deprived by the act of the debtor-and this lien exists whether the execution is levied or not -and a subsequent sale of his goods by the debtor is void. (b) If two or more writs of fieri facias against the same person be delivered to the same officer, they shall take precedence of each other, according to the time of their delivery; but if the two writs be delivered to different officers they take precedence according to the time of their actual execution. (c) The writ of fieri facias is privileged in this, that after the discharge of the body of a debtor from custody, either upon his taking the oath of insolvency, or under the law concerning jail fees, the creditor may still, without any notice to the debtor or order of court, sue out his writ of fieri facias; and the same privilege extends to an elegit, but not to the capias ad satisfaciendum. (d)

Capias ad satisfaciendum.-All executions of capias ad satisfaciendum shall bind the real estate of the defendant, from the time when they shall be levied, (e) and also, the property of the goods, from the same time, (ƒ) and shall have priority according to the time when they are levied. (g) These provisions, it will be perceived, are entire innovations upon the common law, which, so far from binding the property by the levy of a capias ad satisfaciendum, considered it entirely and for ever discharged. By the actual service of the capias ad satisfaciendum the lien of the judgment is destroyed, and the plaintiff can then only stand on the lien given to the capias ad satisfaciendum executed, as above; (h) and therefore, deeds made by the debtor after judgment, and before capias ad satisfaciendum executed, if afterwards capias ad satisfaciendum be served, will be good. But as this doctrine proceeds upon the principle that the levying of the capias

(a) R. C. c. 134, § 13.

(b) Pegram v. May, 9 Leigh. 176; Tate's Dig. 371.

(c) R. C. c. 134, § 13; Tate's Dig. 371, note 1.

(d) Sup. R. C. c. 216, §3; Acts 1845-46, c. 84.

(e) R. C. c. 134, § 10.

(g) Foreman v. Loyd, 2 Leigh. 284.

(f) Sup. R. C. c. 213, § 4.

(h) Rogers v. Marshall, 4 Leigh. 425.

Remedies to recover Debts.

ad satisfaciendum determines the right of the plaintiff to an elegit, it may possibly be affected by the act of 1846, (a) which allows an elegit after capias ad satisfaciendum has been executed and defendant discharged by taking the insolvent oath; and the lien of the capias ad satisfaciendum executed, which is perfected only by the defendant's release as an insolvent, will not overreach the lien by elegit levied and land extended before such release, although the judgment on which the elegit issued was rendered after the service of the capias ad satisfaciendum. (b) Any debtor who shall be taken in execution, may discharge him-. self from custody, by subscribing and delivering a schedule of his whole estate, delivering over all personal estate contained in said schedule, and conveying all the real estate therein to the sheriff and taking the oath of insolvency, in form prescribed. (c) After such discharge no other writ of capias ad satisfaciendum shall issue, except by order of court, upon motion, after ten days' notice of such motion to the defendant. (d)

Bail in suits.-The English doctrine of appearance and special bail has been superseded by a statute passed in 1826, which provides that when bail shall be lawfully required on any writ of capias ad respondendum, the officer executing the same shall not discharge the defendant from custody, upon the execution of any bond for the appearance of such defendant, nor shall he take any such bond; the defendant shall be discharged from custody upon giving good special bail to the action, in the manner therein provided. (e)

In all actions of debt founded upon any writing obligatory, bill, or note in writing, for the payment of money or tobacco, all actions of covenant and detinue, and all actions upon statutes especially authorizing bail to be taken, the plaintiff may of right demand bail. (ƒ)

In all other personal actions, it shall be lawful for any judge of the General Court, or any justice of the peace for any county or corporation, upon proper affidavit verifying the justice of the plaintiff's action, and showing probable cause to apprehend that

(a) Sup. R. C. ch. 216, §3; Acts 1845-46, c. 84.
(b) Foreman v. Loyd, 2 Leigh. 287.
(e) Sup. R. C. c. 208.

(c) R. C. c. 134, §31. (f) R. C. c. 128, §43.

(d) Ib. §33.

Remedies to recover Debts.

the defendant will depart from the jurisdiction of the court so that process of law cannot be served upon him, to direct bail to be taken, by indorsement on the original writ or subsequent process. (a)

In any personal action, in which bail shall not have been required, the court may, at any time before final judgment, for good cause shown, rule the defendant to give special bail, and on his failure to do so, may refuse him permission to plead, or may set aside any plea already pleaded by him and award a writ of inquiry, or otherwise proceed to judgment according to law, or may cause him to be arrested and committed to prison. (b)

Bonds with collateral conditions, or any collateral engagements whatever, are not within the act. (c) Bonds, which although not single bonds, are yet to be defeasanced by payment of an ascertained sum, and where the intervention of a jury is not necessary to judgment, are within the act, and bail is demandable; but if there be in the bond no ascertained sum, for which judgment may be given, and the intervention of a jury be necessary to ascertain what is due, such bond is one with a collateral condition, and bail is not demandable. (d) The indorser of a negotiable note is only collaterally liable, and therefore cannot be held to bail as of right. (e) The affidavit required by the statute to authorize bail where it is not demandable as of right, may be made by a third person, the plaintiff's agent, (ƒ) and it is supposed may be made by a person out of the state.

If bail be not given, when required, the defendant shall be committed to prison. He may then, after reasonable notice to the plaintiff or his attorney, confess a judgment in the clerk's office, for the amount of the plaintiff's demand with interests and costs, or for such part thereof as the plaintiff or his attorney may consent to; and thereupon be forthwith discharged from custody, unless the plaintiff or his attorney shall direct otherwise, in which case he shall be and remain in custody, in the same manner and with the same effect as if under a capias ad satisfaciendum, (g) (a) R. C, c. 128, § 44. (b) Ib. § 50.

(c) Ruffin v. Call. 2 Wash. 181; Nadenbonsh v. Lane, 4 Rand. 413.

(d) Henderson v. Hepburn, 2 Call. 238, 239.

(e) Metcalf v. Battaile, Gilmer 191; Hatcher v. Lewis, 4 Ran. 152.
(f) Ashby v. Kiger, 3 R an. 50.
(g) Sup. R. C. c. 217.

Remedies to recover Debts.

and may then discharge himself by taking the insolvent debtor's oath. And if bail be given, and the bail, after judgment, surrender the principal, such principal may discharge himself from custody by taking the insolvent debtor's oath. (a)

If bail be given, when required, the bail by bond undertakes that in case the defendant shall be cast in the suit, the said defendant will pay and satisfy the condemnation of the court, or render his body to prison in execution for the same, or that he the bail will do it for him. (b) In detinue the bail undertakes that in case the defendant be cast, the said defendant shall restore to the plaintiff the specific property sued for, or pay the alternative value thereof, or render his body to prison in execution for the same, or that the bail will do it for him. (c) In consequence, if the plaintiff, recover judgment, and cannot obtain satisfaction thereof and issue execution against the defendant's body, which is returned "not found," the bail becomes liable for the said judgment, upon a scire facias, unless he be discharged or discharge himself by one of these modes.

1. Bail may be discharged by the plaintiff failing to commence proceedings against him within three years after judgment against principal. (d)

2. Bail may discharge himself by surrendering his principal at any time before the end of the term next after the scire facias shall have been served upon him. (e) In detinue, however, such surrender shall discharge the bail only from the payment of the alternative value of the property recovered and the costs and damages, and not from the obligation to deliver the specific thing. (f)

(a) Acts 1842-43, c. 74.

(e) Sup. R. C. c. 208, §5.

(b) R. C. c. 128, §51.
(d) Acts 1845-46, c. 88.

(e) R. C. c. 128, §54; Sup. R. C. c. 207.

(f) Sup. R. C. c. 208, § 6.

NORTH CAROLINA.

1. COMMON LAW.

2. CHOSES IN ACTION.

3. INTEREST.

4. FRAUDS.

5. CORPORATIONS.

6. PRINCIPAL AND SURETY.

7. LIMITATIONS OF ACTIONS.

8. EFFECT OF DEATH UPON THE RIGHTS OF CREDITORS.

By an act passed in 1778, and which still remains in force, the common law which had been previously in force and use within the colony, is declared to exist in full vigor and effect, except so far as it is inconsistent with the political institutions of the state, or has been repealed or otherwise provided for. (a)

2. Choses in Action.

Bills, bonds, and promissory notes.-All promissory notes for the payment of money to any person or order, are put upon the same footing, and made negotiable as inland bills of exchange. (b)

All bills, bonds, or notes for money, whether with or without a seal, payable to order, or not, are transferable by indorsements, as promissory or negotiable notes are: and the indorsee may (b) Ib. 93.

(a) R. S. i. 110.