A defendant was arrested on a ca. sa. and gave bond as required by iaw ; tbe plaintiff was permitted to amend his execution and tho defendant allowed to appeal; m the Superior Court the plaintiff moved to dismiss the appeal, on the ground that the appeal was improvidently granted, and the motion was sustained by the Court and the appeal ordered to be dismissed. The plaintiff is not then entitled in that Court to a judgment for his debt and costs against the defendant and his sureties-on the appeal bond.
Appeal from the Superior Court of Law of Buncombe County, at a Special Term, July, 1851, his Honor Judge Bailey presiding.
The defendant was arrested on a capias ad satisfacien-dum. on a Justice’s judgment, and entered into bond under the act for the relief of honest insolvent debtors. On the return of the, proceedings, the plaintiff moved the County Court to amend the. execution, and it was allowed. The defendant prayed an appeal, and, having surrendered himself in discharge of his sureties and been ordered into custody, he was allowed to appeal. In the Superior Court the plaintiff moved to dismiss the appeal as having been improvidently granted, and the Court allowed the motion, and gave judgment against the defendant and his sureties for the costs on the appeal. Then the plaintiff further moved for judgment for tKe debt and all the costs against the defendant and his sureties for the appeal. But the Court refused it, and" ordered a procedendo to the County Court; and the plaintiff appealed.
J. W. Woodfin, for the plaintiff.
Avery, for the defendant.
*252Ruffin, C. J.
The two motions of the plaintiff were entirely inconsistent. The appeal was dismissed at his instance for the want of jurisdiction, and the defendant acquiesced therein. It necessarily followed, that there could not be judgment for the debt, since that would imply jurisdiction and a decision on the merits.
Per Curiam. Judgment affirmed.