32 N.C. 75 | N.C. | 1849
The judgment below is erroneous and must be reversed. The action was in the County Court of Rowan, upon a promissory note purporting to be executed by both the defendants. A verdict was rendered against both, and both appealed to the Superior Court, and united in the appeal bond. On the trial in that court the jury found a verdict for the defendant *66
Conner and against Long, subject to the opinion of the court upon a question of law reserved. The plaintiff moved for judgment against Long upon the verdict, and against Conner and the surety for the prosecution of the appeal upon the appeal bond. The latter motion was opposed by Conner's counsel as to him, on the ground that he had prosecuted his appeal with effect. The presiding judge, being of opinion with the defendants upon the point reserved, directed the verdict to be set aside and a nonsuit to be entered, thereby declaring that the plaintiff was not entitled to the judgment asked. If he was entitled to either, there was error in the opinion, and there must be a judgment for the plaintiff. The only question upon which our opinion is required is as to the motion against Conner upon the appeal bond. The action was a joint one upon a joint contract, and in the County Court the verdict and judgment were against both defendants. In the Superior Court the trial was de novo, and there the jury severed the defendants by rendering a verdict for Conner and against Long. This is certainly against the rule of the common law, and would be erroneous. 1 Arch. N. P., 57; but it is authorized by the express provision of the act of (78) 1777, Rev. St., ch. 31, sec. 88, and was so decided in Jones v. Ross,
PER CURIAM. Judgment accordingly.
Cited: Kelly v. Muse,
(79)