Cochran v. Wood, 29 N.C. 215, 7 Ired. 215 (1847)

June 1847 · Supreme Court of North Carolina

29 N.C. 215, 7 Ired. 215

JOHN COCHRAN vs. JAMES R. WOOD.

Where a defendant on an appeal from the judgment of the County Court, gave but one surety, the surety cannot on the judgment being affirmed in the higher Court, object to a judgment against himself, on the ground that the Statute requires two sureties on an appeal from a Justice.

The sureties are required for the benefit of the plaintiff, and he' may dispense with them in whole or in part, at his option.

The case of Arrcnton v. Jordan, 4 Hawks. 28, cited and approved.

Appeal from the Superior Court of Law of Anson County at the Spring Term 1847, his Honor Judge Battle, presiding.

The plaintiff recovered a judgment in the County Court against Wood, who appealed and entered into bond with Waddell as his surety. In the Superior Court the plaintiff again recovered, and then moved for judgment against Waddell on the appeal bond ; which the latter opposed on the ground, that there was but one surety, whereas the statute requires “ two sufficient sureties.” But the Court gave judgment for the plaintiff, and Waddell appealed to this Court.

Winston and Strange, for the plaintiff

Mendenhall, for the defendant.

Ruffih, I.

An appeal bond is required for the security

of the Appellee; and for his better security, the statute provides that there shall be “ two sureties.” But as the bond is intended for the benefit of the appellee, it is entirely competent for him to renounce it, either wholly or in parti It was upon this maxim, that it was held, as far back as Dr. Wm. Dreiory’s case, cited 10 Rep. 100, in debt on a bail bond to the sheriff, that the bond was- good, though given by one surety, and the statute used plural words. The same point was determined here in Arrenton v. Jordan, 4 Hawks 28. That case held further, that a scire facias would lie on such a bond; and thus established, that the principle extends to all remedies, as well those under the statute as those at common law. Now, the language of the 69th section of the Act of 1771, ch. 115, respecting bail bonds, is precisely the same as- that of the 75th section respecting appeal bonds, each requiring the bond, “with two sufficient sureties.” The reasoning and decision of Arrenton v. Jordan is.therefore in point here. The terms, in which the sureties are to be bound, cannot, indeed, be substantially varied; or, if they are, the obligee cannot entitle himself to the remedy of the statute, but must get on as well as he can at common law. But an objection, founded solely on the number of sureties, cannot impair the obligation of the bond, or impede any remedy on it; because the obligee though he might, is not bound to, insist on the provisions of the Act in his favor, being strictly observed in that respect.

Per Curiam. Judgment affirmed.