State v. . Horton , 123 N.C. 695 ( 1898 )

The defendant gave recognizance for his appearance "at the next term of the Superior Court on the third Monday in September." At that term the judge, being ill, did not appear, and the court was "adjourned until next term." Code, sec. 926. It would be a grave miscarriage of justice if on such facts all recognizances are discharged when no officer is present authorized to take renewals. In Askew v. Stevenson, 61 N.C. 288, it was held that the cause was continued "certainly for one term" and probably "from term to term until the attendance of a judge to hold the court," by virtue of Revised Code, ch. 31, sec. 24. That section was brought forward in The Code, sec. 919, with the words stricken out which formerly restricted its application to civil cases. Certainly this section applies in the present case, as a special term was held in January following, of which "due notice was given by publication in the newspapers and otherwise," and section 919 provides that all persons "bound to appear at the next regular term of the court shall attend at the special term under the same rules, etc." The recognizance to appear at September Term was not to "depart the same without leave." There being no judge present no leave was given beyond the adjournment "till next term." The Code, sec. 926, by operation of law carried all matters over to "the next regular term" in the same plight and condition (Walker v. State, 6 Ala. 350), and this was transferred to the intervening special term by virtue of The Code, sec. 919. No hardship can accrue from any bona fide mistake in such matters, as the judge has discretion to remit or lessen forfeitures in all cases (Code, sec. (697) 1205), but in refusing judgment on the scire facias there was error. State v. Houston, 74 N.C. 174, has no application, for thereafter the bond was given a new regular term was established by law to be held before the term at which the defendant was bound over to appear.

Error.