Opinion
(December Term, 1830.)
The bond required by the act of 1777 (Rev., ch. 115, sec. 75) upon appeals from the County to the Superior Court is intended as a security for the appellee, and if the appellant fails, the sureties are not liable for his costs.
SCIRE FACIAS to obtain judgment against the defendant, who was surety of one Brooks, upon an appeal from the County to the Superior Court of Moore, from a judgment recovered against him by the plaintiff. The appeal bond was in the usual form. Brooks had been cast in the Superior Court, and the recovery, as well as the plaintiff's costs, having been paid, the only question was whether the defendant was liable for the costs of Brooks in the Superior Court. MARTIN, J., held the defendant to be liable for those costs, and judgment was entered up accordingly; from which he appealed.
Seawell, for the defendants.
No counsel for the plaintiff.
FROM MOORE.
In Dolby v. Jones, ante, 109, one question was whether the surety for an appeal from a judgment of a justice of the peace to the County Court was liable for the judgment of the Superior Court, pronounced against his principal, after an appeal to the Superior Court. A second question was whether upon such judgment the surety was liable for the costs of his principal. The first question was decided in the affirmative. The other was not decided at that time, but was examined and decided at the succeeding term, in the negative. It appeared to the Court then that the question never had been settled, and that the practice in the State had not been uniform. In some instances all the costs had been inserted in the bill of costs, and execution issued for them (492) under the act of 1783. (Rev., ch. 189.) In other instances two executions had issued, the one against the plaintiff, and the other against the defendant for the costs due by each. The question was then taken up upon the construction proper to be given to the act of 1777 (Rev., ch. 115), which gives an appeal from the County to the Superior Court. The seventy-fifth section of that act grants an appeal from every judgment, sentence, or decree pronounced by the County Court; but directs that the appellant shall previously thereto enter into bond with two sufficient sureties for prosecuting the same with effect, and for performing the judgment, sentence, or decree, which the Superior Court shall pass or make thereon, in case the appellant shall have the cause decided against him. The appeal bond is given for the security of the appellee, and when he succeeds in the Superior Court, judgment is given for him. And part of that judgment is that he shall recover his costs from the appellant. But there is no judgment given that the appellant shall pay his own costs. The sureties for the appeal are only liable for the judgment pronounced against the appellant, and are no further bound. Of course, they are not bound in the present case for the appellant's costs, no judgment of the Superior Court having been given for them. The appellant is liable for his own costs. He is made liable by the same act of Assembly. But he is not liable by virtue of the appeal bond, which he has given.
PER CURIAM. Reversed, and judgment entered for the defendant.
(493)