Roberts v. Green , 31 Ga. 421 ( 1860 )

By the Court. —

Jenkins, J.,

delivering the opinion.

The case under review is this: The plaintiff in error having .a judgment ágáinst McCard, sued out a ca. sa.t and caused McCard to be arrested. McCard offered to give bond to appear at the Court, whence the ca. so. issued, and take the benefit of the Act for the relief of insolvent debtors, and tendered the defendant in error as security. The sheriff having him in custody, prepared the bond which was executed, and the defendant in ca. sa. discharged.

The condition of the bond was, that the defendant, Mc•Card, should appear at the next Inferior Court for Whitfield county, “on the second Monday in July next,” etc. The time appointed for the holding of the Court, by law, was the 1st Monday in the same month, and it was then actually holden. McCard not appearing, judgment was taken against him, and the defendant in error. McCard did appear at the place where the Court is holden by law, on the second Monday in July, and exhibited himself to the clerk. Is the judgment taken against the security, the defendant in error, valid? He did what hie undertook in his bond to do — -he caused his principal, who was legally in his custody, . to appear at the place and at the 'time specified, and to present himself to a ministerial officer of the Court, to., which the bond was returnable. He is a surety, and is regarded indulgently by the law.

It is said that he was bound to know the law — bound to know the time appointed by law for the holding of the Court. This would have been a sufficient answer, had no time been stated in the bond. It is the duty of the arresting officer to take the bond. The defendant under arrest must satisfy him to procure a discharge from imprisonment. The bond was executed as prepared by the sheriff. ' The mistake was his. Shall he or the security suffer the consequences of the mistake? We hold with the Court below, whose judgment we review, and the Court of original jurisdiction, that the recourse •of the party injured is not against the security. -

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.