Dolby v. Jones, 13 N.C. 109, 2 Dev. 109 (1829)

June 1829 · Supreme Court of North Carolina

13 N.C. 109, 2 Dev. 109

Elizabeth Dolby v. Young Jones and James Watson.

From Wake.

Sureties for an appeal from the judgment of a single magistrate* are sureties to the action, and are bound to satisfy any judgment which may be rendered in it against the appellant.

Where the judgment of a Justice was affirmed in the County Court, and the suit went from that to the Superior Court, and final judg. meat was entered against the appellant, his first sureties are bound for its satisfaction.

The Defendants were sureties for one Utley, in an appeal prayed by him to the Court of Pleas and Quarter Sessions, from the judgment of a Justice of the Peace. The judgment of the Justice was affirmed, and judgment rendered against the Defendants for the amount recovered in the County Court. From this judgment? Utley prayed an appeal to the Superior Court, and gave ether sureties, with tha usual condition. In the Superior Court, the judgment of the County Court was affirmed, and judgment rendered against the sureties last given, but not against the Defendants.

June, 1829.

rj,[)C 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.

W. II. Haywood for the Defendants,

urged strongly that they were discharged by the appeal to the Superior Court.

Manly, contra,

submitted the cause without argument.

Hall, Judge.

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 Peare, the acknowledgment of the surety for the appeal, subscribed in bis own band-writing, 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 liable to any judgment obtained in it. So the surety for a» appeal f-om a justice, is bound for the action, and obliged to p "iortn whatever judgment is obhct.ied in it. If | it be asked, why is it. necessary tic a Det 'idant 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 tliis without any default on his part — a predicament la which the law never contemplated placing a creditor.,

Per Curiam. — Let the judgment be affirmed.