Moody v. Stockton, 14 N.C. 431, 3 Dev. 431 (1832)

Dec. 1832 · Supreme Court of North Carolina

14 N.C. 431, 3 Dev. 431

John Moody v. William P. Stockton.

Rail may suiTender their principal after a verdict, but before final judgment against them.

The act authorising such a surrender, necessarily authorises some mode of averring it; it should be by a plea framed so as to enable the plaintiff to deny the surrender, and contest the identity of the prim cipal.

This was a scire pacías against the defendant, as the bail of Joseph W. Stockton. The defendant pleaded several pleas wiiicii were tried before Daiíiel. Judge, on the morning of Wednesday of the Fall term 1831, of Ire-dell Superior Court. All the pleas being negatived, judgment was then rendered for the plaintiff. In the afternoon of the same day, the defendant brought Joseph W. Stockton, the principa!, into court, and moved to surrender him in his discharge. Tisis was opposed by the plaintiff but his Honor set the judgment aside, and permitted an entry of the surrender to be ¡nade. The bail was prayed in custody by the plaintiff, without prejudice to Ins right, to insist upon bis claim against tne defendant. Afterwards his Honor gave final judgment in favor of the defendant, and the plaintiff appealed.

Gaston, for the plaintiff.

Iredell, for the defendant,

Henderson, Chief-Justice.

The law which gives to the bail the right to surre ir? to cip.ti v.\ , fa-sal judgment, giv.es necessarily tuerewila, tuo means of making that right effectual, if the surrender be after 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 tiie 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 aeeirmeb.