Swinney v. Watkins & Ragland

By the Court. Lumpkin, J. delivering the opinion. J. J. Green having been arrested upon a ca. sa. at the instance of Watkins & Ragland, gave the usual bond, with E. H. Swinney as security for his appearence at the next Term of the Court, to take the benefit of the insolvent debtors’ act. At that time an order was taken to enter up judgment upon .the bond, against the principal and his security, upon the ground, that Green had failed to appear. An execution issued, and Swinney the security, arrested the proceeding by affidavit of illegality, in which it is alleged and sworn, that Green when called, did appear, and come within the bar of the Court. The Court at the hearing, dismissed the illegality, and we are of the opinion that the judgment was right. [1.] According to the general understanding and practice of the Courts, the proceeding by illegality must be for something wrong, either in the issuing of the execution, or for something which transpires subsequently, as for instance payment, which would make it wrong to enforce the f. fa. In other words, it does not reach back behind the judgment and this is attempted to be done in the present case. [2.] We do not think the security however, to be remediless. He' is entitled to his day in Court — an opportunity of being heard, and if the fact be, that Green did appear when called, and was present in Court ready to stand to and abide by the judgment of the Court, the security should be discharged from his obligation. The principal may surrender himself; why was he not ordered into custody? Our opinion further is, that the security may by motion, set aside the [572] judgment on this ground. This remedy is neither more nor less, than tbe writ of error, coram nobis, in the English hooks, and which is in daily use in our Courts. If there be anything peculiar in the case, recourse might he had to Equity, to make the remedy more effectual. No such resort would seem to be necessary in the present case. Judgment affirmed.