14 N.C. 431 | N.C. | 1832
The law which gives to the bail the right to surrender the principal before final judgment, gives necessarily therewith the means of making that right effectual, if the surrender be after (432) verdict and before judgment. Although we know of no such plea, as one between the verdict and judgment, yet one must necessarily be allowed, for the verdict concludes all facts up to it, and if the surrender be at the same term in which judgment was rendered, a plea since the last continuance will not do. In this case, the surrender was after verdict and before judgment, the court having set aside the judgment previously entered during the same term, as it rightfully could do, having power over the records during the whole term. The bail had the right to plead it, and, properly speaking, should have pleaded it to give the plaintiff an opportunity of controverting both the surrender in that cause and the identity of the principal, which might possibly be denied upon the plea of a surrender. But in this case there was no need of a plea, as the plaintiff moved to commit the principal, which admitted all that he could deny by a replication. It appearing, therefore, upon the record, that the principal has been surrendered before final judgment in the cause, the judgment must be affirmed, but I repeat, it would be more regular to plead the surrender.
PER CURIAM. Judgment affirmed.
Cited: Underwood v. McLaurin,
