When a defendant in North Carolina Small Claims Court (magistrate court) thinks the plaintiff might not be able to pay court costs if the defendant wins, can the defendant force the plaintiff to post a $200 prosecution bond under G.S. § 1-109?
Plain-English summary
A New Hanover County civil magistrate asked the AG whether a small claims defendant could force the plaintiff to post a $200 prosecution bond under G.S. § 1-109. The bond, if required, would secure the defendant's recovery of court costs if the defendant wins the case and the plaintiff cannot pay.
Special Deputy Attorney General James C. Gulick concluded no. The bond is not available in small claims actions before the magistrate.
The analysis turned on two statutes.
G.S. § 1-109 provides that "upon motion of the defendant," the clerk or judge "shall require the plaintiff" to give a $200 undertaking, deposit $200 as security, or qualify to sue as a pauper. The point of the bond is to secure the defendant in the recovery of costs ("the object of the prosecution bond is to secure the defendant in the recovery of costs wrongfully paid," Waldo v. Wilson, 177 N.C. 461 (1919)). The bond is not required automatically; it is a remedy the defendant can seek during litigation.
G.S. § 7A-231 is the small claims provisional-remedies statute:
The provisional and incidental remedies of claim and delivery, subpoena duces tecum, production of documents and orders for the relinquishment of property subject to a possessory lien pursuant to G.S. 44A-4(a) are obtainable in small claims actions. The practice and procedure provided therefor in respect of civil actions generally is observed, conformed as may be required.
No other provisional or incidental remedies are obtainable while the action is pending before the magistrate.
The opinion's syllogism:
- G.S. § 1-109's prosecution bond is a "provisional or incidental remedy" (a remedy the defendant can invoke during litigation to secure the eventual recovery of costs).
- G.S. § 7A-231 lists the provisional and incidental remedies available in small claims, and the § 1-109 bond is not on the list.
- § 7A-231 closes the list with "no other provisional or incidental remedies are obtainable."
- So the § 1-109 prosecution bond is not available in small claims.
The AG also rebutted a textual counter-argument. § 1-109 is not located in the Chapter 1 subchapter titled "Provisional Remedies" or the subchapter titled "Incidental Procedure in Civil Actions," so one might argue it is not really a provisional/incidental remedy at all. The AG rejected that: subchapter titles are not authoritative (per State v. Welsh and Cram v. Cram), the placement of statutes within Chapter 1 is not all-inclusive of provisional/incidental remedies (the lis pendens statute is in the same subchapter as § 1-109 yet is clearly a provisional remedy), and three of the four provisional/incidental remedies expressly enumerated in § 7A-231 are not in the Provisional Remedies or Incidental Procedure subchapters either. So the subchapter location of § 1-109 does not save it from § 7A-231's catch-all bar.
Currency note
This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. G.S. § 1-109 has been amended; the bond amount may have changed, and the qualification procedures have been refined. G.S. § 7A-231 has likewise been amended, with the list of available provisional and incidental remedies occasionally adjusted. The basic structural rule (small claims court is a limited-jurisdiction streamlined forum where many ancillary procedures of superior and district court are not available) is unchanged.
Background and statutory framework
North Carolina's small claims court is the magistrate court housed within district court. It handles civil cases with limited dollar value (now $10,000, adjustable by statute) on a streamlined procedure. Magistrates hear the cases; the procedures are deliberately simpler than those in district or superior court so unrepresented parties can navigate them.
The trade-off for streamlined procedure is that many of the ancillary tools available in higher courts are not available in small claims. § 7A-231 enumerates the ones that are (claim and delivery for tangible personal property, subpoena duces tecum for documents, production of documents, and possessory-lien orders under § 44A-4(a)) and then forecloses everything else.
The 1986 opinion put the prosecution bond on the unavailable side. A defendant facing a small-claims action by a financially weak plaintiff cannot get pre-judgment security for costs. The defendant's protection comes after judgment: if the defendant wins, costs are taxed against the plaintiff, and the defendant has whatever collection tools are generally available against a small-claims plaintiff. That is a thinner protection than § 1-109 would provide, but it is the structural compromise that small claims procedure embodies.
The opinion's reasoning also clarifies a point about statutory construction. The titles of statutory subchapters, like the titles of statutes themselves, are not part of the statute's operative text. Where the text of one statute (§ 7A-231) controls a question, the location of another statute (§ 1-109) in some particular subchapter does not change that result.
Common questions
What if the defendant moved for a prosecution bond after the case was appealed to district court for trial de novo?
The AG's opinion was about prosecution bonds "while the action is pending before the magistrate" (the language of § 7A-231). Once the case was appealed and was pending in district court, § 7A-231's restriction no longer applied. The defendant could presumably move for a § 1-109 bond at that point, though the practical value would depend on timing.
Could a creative magistrate condition the case on the plaintiff's posting some security as a matter of equity?
The opinion treats § 7A-231 as foreclosing the prosecution-bond device altogether in small claims. A magistrate's general powers do not extend to importing remedies that the statute excludes. An equity-based workaround would likely be unauthorized.
What about the pauper-status process for a plaintiff who could not afford filing fees?
That is a separate procedural channel handled under § 1-110 and related statutes, and it concerns the plaintiff's own ability to file, not the defendant's pre-judgment security. The 1986 opinion did not address it.
Did this rule apply to commercial small claims (e.g., debt collection)?
Yes. Small claims procedure applies uniformly regardless of subject matter. The most common small claims types are summary ejectment (landlord-tenant) and money judgments (often small debt collection or service-business collections); both fall under § 7A-231's procedural framework.
Source
- Landing page: https://ncdoj.gov/opinions/courts-application-of-prosecution-bonds-under-g-s-1-109-in-small-claims-actions/
Citations
- G.S. § 1-109 (prosecution bond on motion of defendant)
- G.S. § 7A-231 (provisional and incidental remedies in small claims actions)
- Waldo v. Wilson, 177 N.C. 461, 100 S.E. 182 (1919)
- State v. Leeper, 59 N.C. App. 199, 296 S.E.2d 7 (1982)
- State v. Welsh, 10 N.C. 404 (1824)
- Cram v. Cram, 116 N.C. 288, 21 S.E. 197 (1895)
Original opinion text
Requested By:
Jane M. Eason Civil Magistrate New Hanover County
Question:
Do the provisions of G.S. 1-109, which require a $200.00 plaintiff's bond for costs when moved by defendant, apply to actions pending in Small Claims Court?
Conclusion:
No.
G.S. 1-109 is as follows:
At any time after the issuance of summons, the clerk or judge, upon motion of the defendant, shall require the plaintiff to do one of the following things and the failure to comply with such order within 30 days from the date thereof shall constitute grounds for dismissal of such civil action or special proceeding:
(1) Give an undertaking with sufficient surety in the sum of two hundred dollars, with the condition that it will be void if the plaintiff pays the defendant all costs which the latter recovers of him in the action.
(2) Deposit two hundred dollars ($200.00) with him as security to the defendant for these costs, in which event the clerk must give to the plaintiff and defendant all costs which the latter recovers of him in the action.
(3) File with him a written authority from a superior or district court judge or clerk of a superior court authorizing the plaintiff to sue as a pauper: Provided, however, that the requirements of this section shall not apply to the State of North Carolina or any of its agencies, commissions or institutions, or to counties, drainage districts, cities and towns; provided, further, that the State of North Carolina or any of its agencies, commissions or institutions, and counties, drainage districts, cities and towns may institute civil actions and special proceedings without being required to give a prosecution bond or make deposit in lieu of bond.
The object of the prosecution bond is to secure the defendant in the recovery of costs wrongfully paid. Waldo v. Wilson, 177 N.C. 461, 100 S.E. 182 (1919). It is apparent from reading this statute that the plaintiff's bond is not automatically required, but is in the nature of a remedy which the defendant can seek, while litigation is in progress, to secure repayment of costs advanced by him in the event he prevails. (Of course, if the action goes against the defendant, he may himself be taxed with the costs). Hence, the plaintiff's prosecution bond under G.S. 1-109 is a provisional or incidental remedy available the defendants.
G.S. 7A-231 provides as follows:
The provisional and incidental remedies of claim and delivery, subpoena duces tecum, production of documents and orders for the relinquishment of property subject to a possessory lien pursuant to G.S. 44A-4(a) are obtainable in small claims actions. The practice and procedure provided therefor in respect of civil actions generally is observed, conformed as may be required.
No other provisional or incidental remedies are obtainable while the action is pending before the magistrate.
It is the opinion of the Attorney General that the plaintiff's prosecution bond set out in G.S. 1-109 is one of the provisional or incidental remedies, which are not obtainable while a civil action is pending before the magistrate by virtue of the last sentence of G.S. 7A-231. Of the two, the latter is more particular and therefore controls. See State v. Leeper, 59 N.C. App. 199, 296 S.E.2d 7, cert. denied, 307 N.C. 272, 299 S.E.2d 218 (1982).
In reaching this conclusion the Attorney General has considered and rejected, as an argument against his opinion, that G.S. 1-109 is not contained in Subchapter XIII of Chapter 1, entitled Provisional Remedies, or in Subchapter XV, entitled Incidental Procedure in Civil Actions. He notes first that lis pendens, which is closely linked to attachment, is included in the same subchapter as G.S. 1-109, suggesting subchapters XIII and XV are not all inclusive. He notes second that of the four "provisional and incidental remedies" explicitly allowed in small claims actions by G.S. 7A-231, only "claim and delivery" is included either in Subchapter XIII or Subchapter XV, again suggesting that they are not all-inclusive. Finally, he notes that the titles of statutes, and especially their headings, are not part of the statutes and do not control their construction. State v. Welsh, 10 N.C. 404 (1824); Cram v. Cram, 116 N.C. 288, 21 S.E. 197 (1895).
Lacy H. Thornburg
Attorney General
James C. Gulick
Special Deputy Attorney General