32 N.C. 306 | N.C. | 1849
The whole ground assumed in the plea is covered by Bradhurst v. Pearson, ante, 55. There, as in this (307) case, the original action was against two defendants upon a contract. The plaintiff suffered a nonsuit as to one and obtained judgment against the other. Upon sci. fa. to subject the bail, the same defense was attempted as here, but unsuccessfully. It is very certain that any alteration of a writ which changes the nature of the action, as from trespass to case, or otherwise, will discharge the bail. Here, the nature of the action was not altered; after the nol. pros. against Daniel McNiel it still continued an action of covenant. The bail of James A. McNiel were not discharged, and are liable as such.
The jury found the facts upon this plea specially, and it was agreed by the parties that the court should pronounce such judgment upon them as was agreeable to law. The presiding judge, being of opinion that the bail was discharged by the nol. pros., pronounced judgment for them. In this judgment there is error; and it is, therefore, reversed, and judgment given for the plaintiff.
PER CURIAM. Judgment for the plaintiff. *227
(308)