Opinion
May Term, 1819.
From Mecklenburg.
Appeal bond contained no covenant to perform the judgment, sentence, or decree of the Superior Court; but merely a covenant to pay all such costs and charges as by law is required in such case. No judgment can be rendered against the securities in such bond, it not being taken in the manner prescribed by the Act of Assembly regulating appeals from the County to the Superior Court.
John A. Orr sued out an original attachment against Nathan F. Orr, and Andrew McBryde was summoned as a garnishee. Having made his garnishment, the County Court condemned in his hands, to satisfy the recovery of the Plaintiff, the sum of $374. From this judgment of condemnation, McBryde appealed to the Superior Court and entered into the following bond with securities, to-wit:
STATE OF NORTH CAROLINA, )) November Sessions, 1814. MECKLENBURG COUNTY. )
Know all men by these presents that we, Andrew McBryde, (being summoned as a garnishee in the case of John A. Orr v. Nathan Orr) William Berryhill and William Carson, are held and firmly bound unto John Allen Orr, in the just sum of one hundred pounds, for which payment well and truly to be made and done, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals, and dated 30 November, 1814.
The condition of the above obligation is such, that whereas the above bounden Andrew McBryde hath prayed and obtained an appeal to the Superior Court to be held for the County of Mecklenburg, at the Court-House in Charlotte, on the seventh Monday after the fourth Monday in March next, in the suit wherein John A. Orr is Plaintiff, and Nathan F. Orr and Andrew McBryde as garnishee, are Defendants; now if the said Andrew McBryde garnishee aforesaid, do prosecute said appeal with effect, then the above obligation shall be void; otherwise to pay all such costs and charges as by law in such case is provided.
AND. MCBRYDE, (SEAL.) WM. BERRYHILL, (SEAL.) WM. CARSON, (SEAL.)
Witness: ISAAC ALEXANDER.
The judgment of the County Court having been affirmed by the Superior Court, the Plaintiff sued out a scire (236) facias against the securities for the appeal, to shew cause why judgment should not be entered up against them for the amount for which it had been rendered against the Appellant, Andrew McBryde; and they shewed for cause that the appeal bond was not taken pursuant to the directions of the Act of Assembly regulating appeals. — The case was sent to this Court.
This case is not to be distinguished from Forsyth v. McCormick, 4 N.C. 359, where the condition of an appeal bond expressed in the same language with this, was held to be too great a departure from the act of Assembly prescribing the form, and essentially in not securing the main purpose for which an appeal bond is required. This bond contains no covenant to perform the sentence, judgment or decree of the Superior Court. — Judgment must be entered for the Defendants. (237)