1. On motion for a judgment against the sureties in the bond of a debtor, given under the insolvent debtor's law, It was objected that the christian names of the plaintiffs were not inserted in either the warrant, judgment or ca. sa.: Held, that this was not a valid objection, as the imperfection was cured after judgment by our Statute of Amendments, and the ca. sa. properly pursued the judgment, and gave the officer authority to make the arrest and take the bond.
2. It was objected, secondly, that the bond was not made to the plaintiffs by their christian names. This objection also overruled, because the officer literally pursued the Statute in taking the bond, and the averment of the plaintiffs' christian names in the motion is equivalent to a similar averment in a declaration in debt on such a bond.
DANIEL, J.
The christian names of the two plaintiffs had not been inserted, either in the warrants, judgment or capias, which had been obtained against Jarrott. The first question raised, is, whether the constable had authority to arrest Jarrott under the ca. sa., so as to enable him, the said constable, to take this bond of the defendants under the insolvent act. Upon this question, we think no reasonable doubt can be entertained. Jarrott might have availed himself by a (44) plea in abatement, or by exception in the nature of a plea in abatement, of this defect in the warrant. But all imperfections of this sort were cured, after the judgment, by our Statute of Amendments — Revised Statutes, ch. 3. The judgment was a valid one, the writ of ca. sa. pursued the judgment, the officer was bound to execute the writ, and, on executing the writ, it became his duty to take the bond.
Secondly: When the motion was made for judgment by the plaintiffs, Stephen Wall and John B. Holton, it was resisted, because the bond was not made to them by their christian names. The Statute (Rev. Stat., c. 58, sec. 7) directs the constable to take the bond, "payable to the party at whose instance the arrest was made"; the names of the plaintiffs in the ca. sa. were "Wall and Holton"; he therefore literally complied with the Statute. The averment of the christian names in the declaration, if an action of debt had been brought on the bond, would have entitled the plaintiffs to offer in evidence the bond, in its present form, to maintain the declaration; parol evidence, in support of the averment, would neither have varied nor contradicted the bond. We think, that as the motion made in this case, contained the averment of the plaintiffs' christian and surnames, together with the name of the mercantile firm, expressed in the ca. sa. and bond, that there was not such a variance between the motion on record, and the bond taken by the constable, as to preclude the Court from giving judgment as prayed. The judgment must be
PER CURIAM. Affirmed.
Cited: Brooks v. Ratcliff, 33 N.C. 325; Lash v. Arnold, 53 N.C. 207; Heath v. Morgan, 117 N.C. 507; Daniels v. R. R., 158 N.C. 427.
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