13 N.C. 109 | N.C. | 1829
FROM WAKE. The plaintiff having failed to obtain satisfaction from Utley and the sureties on the appeal to the Superior Court, on the fall circuit of 1828 moved his Honor, Judge NORWOOD, for judgment nunc pro tunc, against the defendants, which being entered, they appealed to this Court. The act of 1794 (Rev., ch. 414, sec. 17) declares that in all cases where appeals shall be granted from the judgment of a justice of the peace, the acknowledgment of the surety for the appeal, subscribed in his own handwriting, attested by the justice, shall be sufficient to bind the surety to abide by and perform the judgment of the Court. They are bound in an obligation similar to that which sureties enter into for appeals from the county to the Superior Courts. They are both, like special bail, sureties to the action, but are more strongly bound. For they cannot, as special bail can, surrender their principals in discharge of themselves.
In a suit brought to the County Court, if special bail be taken and the plaintiff appeal to the Superior Court from a judgment rendered against him, if the plaintiff obtain a judgment in the Superior Court, no doubt can be entertained but that the special bail would be liable, although it should be stated in the bail bond that they were bail in a suit brought to the County Court. They are bail to the action and *69 liable to any judgment obtained in it. So the surety for an appeal from a justice is bound for the action, and is obliged to (111) perform whatever judgment is obtained in it. If it be asked why it is necessary for a defendant to give sureties for an appeal to the Superior Court when his special bail are liable? the answer is, that the law requires additional security for the performance of the judgment, from which the sureties cannot exonerate themselves by a surrender of their principal, and against whom judgment can be instanter entered up, together with the principal. Suppose the surety in question only bound to perform the judgment of the County Court, and the defendant, prevailing in that Court, the plaintiff appealed and obtained a judgment in the Superior Court, the plaintiff would have no security — and this without any default on his part — a predicament in which the law never contemplated placing a creditor.
PER CURIAM. Affirmed.
Cited: Wilson v. Murchison, post, 491; Carroll v. McGee,
