Kinchin's executors v. Brickell, 3 N.C. 49, 2 Hayw. 49 (1798)

April 1798 · North Carolina Superior Court

3 N.C. 49, 2 Hayw. 49

Kinchin's executors vs. Brickell.

TVRBT upon bond which had been brought up into this court ^ by appeal from the county court of Franklin j and now there being a verdict against the defendant,

Mr. Falconer for the plaintiff,

moved that judgment might be entered up upon the appeal bond against the sureties for the appeal.. — And he grounded this motion in Í78S, chap. 2, sect. SP “ when any appeal prayed shall not be prosecuted and the court be- “ fore whom the said appeal may be determined shall affirm the. “ ju Igment, then shall the- appellant be decreed top ay to the ap- “ pellee 12 1-2 per cent, interest from the passing of the judg- “ ment in the county court, by which such appeal may have been *l granted,’and the bonds, taken for prosecution of appeals with effect shall hereafter make part of the records sent up to the ^‘superior court, upon which judgment may he instanter enters' ed up against the appellant and his sureties,Stc.”

Haywood, Justice.

-A motion of this sort was sometime ago made in Salisbury court:; Judge Stone and myself being present, and" he seemed to be of opinion'that the motion ought not- to be allowed, I do not recollect that the practice has been settled» - '

General Davie. — Such a motion was' lately made at Hillsbo-rough, and failed. :

Haywood, Justice. — -I will take time to consider of it; you fnay mention your motion a day or two hence.

And now at this day Mr. Falconer ren e we d hrs motion.

Haywoad, justice. — The motion at Salisbury was, as well as I remember, the term after the judgment: I thought the judg-gvnent might be entered ; Judge Stone thought it would be to pass against him unheard ; the answer to that was, that the laws having provided the entering up judgment against sureties instanter, was a full notice to them that they would be proceeded against, or might be proceeded against, whenever judgment should be obtained against their principal, and then they should be ready to defend themselves that the bond was a record made up in court,and spoke die truth incontroverdbly, so that its execution could not be denied The event of this decision was, that notice issued and judgment was entered against the sureties at the next term.

General Davie. — Some years ago, at Hillsborough, I made a similar motion with the present, and Judge Williams would not allow it, from the same reasons that Judge Stone thought ierra» proper, añd I was obliged to take out a sci.Ja. • Judge MlCay at Hillsbwrough, would not give judgment the other day, because of the opinion of Judge Williams and Judge Stone, which was then mentioned to him, but said it was the established practice in the western riding to enter up judgment against the sureties as now moved for.

' Judge Haywood. — The law is express that judgement maybe entered up against them, as Mr, Falconer proposes. — The objection that the defendant has no notice of this proceeding being intended is well answered, by saying that the act of Assembly-gives him notice; the nature of his understanding combined with the law is a sufficient notice to him that he may be thus provided against whenever judgment shall be obtained against the principal.' I am well satisfied in this opinion, and as Judge M'Cay is of the same opinion, I shall permit the judgment to be now entered as moved for.

And it was done accordingly.