Cochran v. . Wood

29 N.C. 215 | N.C. | 1847

An appeal bond is required for the security of the appellee; and for his better security the statute provides that there shall be "two sureties." But as the bond is intended for the benefit of the appellee, it is entirely competent for him to renounce it, either wholly or in part. It was upon this maxim that it was held, as far back as Dr. William Drewry's case, cited 10 Rep., 100, in debt on a bail bond to the sheriff, that the bond was good, though given by one surety and the statute used plural words. The same point was determined here in Arrenton v. Jordan, 11 N.C. 28. That case held, further, that a scire facias would lie on such a bond, and thus established that the principle extends to all remedies, as well those under the statute as those at common law. Now, the language of section 69, ch. 115, Laws 1777, respecting bail bonds is precisely the same as that of section 75 respecting appeal bonds, each requiring the bond "with two sufficient sureties." The reasoning and decision of Arrenton v. Jordan is, therefore, in point here. The terms in which the sureties are to be bound cannot, indeed, be substantially varied, or, if they are, the obligee cannot entitle himself to the remedy of the statute, but must get on as well as he can at common law. But an objection founded solely on the number of sureties cannot impair the obligation of the bond or impede any remedy on it. Because the obligee thought that he might, he is not bound (217) to, insist on the provisions of the act in his favor being strictly observed in that respect.

PER CURIAM. Affirmed.