Superior Court of North Carolina, 1798

Kinchin's Executors v. Brickell

Superior Court of North Carolina · Decided July 5, 1798 · Haywood

3 N.C. 49

Counsel

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 Laws, 1785, ch. 2, sec. 2. "When any appeal prayed shall not be prosecuted, and the court before whom the said appeal may be determined shall affirm the judgment, then shall the appellant be decreed to pay the appellee, 12 1/2 percent interest (50) from the passing of the judgment in the county court by which such appeal may have been 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 be instanter entered up against the appellant and his sureties," etc.

Addendum

The motion at Salisbury was, well as I remember, the term after the judgment. I thought the judgment might be entered; STONE, J., 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 the truth incontrovertibly, 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 Hillsboro, I made a similar motion with the present, and WILLIAMS, J., would not allow it, from the same reasons that STONE, J., thought it improper, and I was obliged to take out a sci. fa. McCAY, J., at Hillsboro, would not give judgment the other day, because of the opinion of WILLIAMS and STONE, JJ., 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.

Opinion of the Court

A motion of this sort was some time ago made in Salisbury court, STONE, J. 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 Hillsboro, and failed.

Addendum

I will take time to consider of it; you may mention your motion a day or two hence.

And now at this day Mr. Falconer renewed his motion.

Addendum

The law is expressed that judgment may be entered up against them, as Mr. Falconer proposes. The objection that the defendant has no notice of this proceeding being intended is well answered *Page 66 by saying that the act of the Assembly gives him notice; the nature of his undertaking, 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 MaCAY, J., is of the same opinion, I shall permit the judgment to be now entered as moved for.

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