Opinion · Nclaw North Carolina
MOODY v. STOCKTON, 14 N.C. 431 (1832)
JOHN MOODY v. WILLIAM STOCKTON., 14 N.C. 431 (N.C. 1832)
- Type
- Opinion
- Court
- Nclaw North Carolina
- Jurisdiction
- Nclaw
- Date
- 1832-01-01
- Topic
- general
MOODY v. STOCKTON, 14 N.C. 431 (1832) JOHN MOODY v. WILLIAM STOCKTON.Supreme Court of North Carolina (December Term, 1832.) 1. Bail may surrender their principal after a verdict, but before final judgment against them. 2. The act authorizing such a surrender necessarily authorizes some mode of averring it; it should be by a plea, framed so as to enable the plaintiff to deny the surrender and contest the identity of the principal.
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MOODYv. STOCKTON,14 N.C. 431(1832)
JOHN MOODY v. WILLIAM STOCKTON.
Supreme Court of North Carolina
1. Bail may surrender their principal after a verdict, but before final judgment against them.
2. The act authorizing such a surrender necessarily authorizes some mode of averring it; it should be by a plea, framed so as to enable the plaintiff to deny the surrender and contest the identity of the principal.
THIS was ascire faciasagainst the defendant, as the bail of Joseph W. Stockton. The defendant pleaded several pleas, which were tried beforeDaniel, J., on the morning of Wednesday of the fall term, 1831, of IREDELL Superior Court. All the pleas being negatived, judgment was then rendered for the plaintiff. In the afternoon of the same day the defendant brought Joseph W. Stockton, the principal, into court, and moved to surrender him in his discharge. This was opposed by the plaintiff, but his Honor set the judgment aside, and permitted an entry of the surrender to be made. The bill was prayed in custody by the plaintiff, without prejudice to his right, to insist upon his claim against the defendant. Afterwards his Honor gave final judgment in favor of the defendant, and the plaintiff appealed.
Gaston for plaintiff.Iredell for defendant.Page 352
HENDERSON, C. J.
The law which gives to the bail the right to surrender the principal before final judgment, gives necessarily therewith the means of making that right effectual, if the surrender be after (432) verdict and before judgment. Although we know of no such plea, as one between the verdict and judgment, yet one must necessarily be allowed, for the verdict concludes all facts up to it, and if the surrender be at the same term in which judgment was rendered, a plea since the last continuance will not do. In this case, the surrender was after verdict and before judgment, the court having set aside the judgment previously entered during the same term, as it rightfully could do, having power over the records during the whole term. The bail had the right to plead it, and, properly speaking, should have pleaded it to give the plaintiff an opportunity of controverting both the surrender in that cause and the identity of the principal, which might possibly be denied upon the plea of a surrender. But in this case there was no need of a plea, as the plaintiff moved to commit the principal, which admitted all that he could deny by a replication. It appearing, therefore, upon the record, that the principal has been surrendered before final judgment in the cause, the judgment must be affirmed, but I repeat, it would be more regular to plead the surrender.
PER CURIAM. Judgment affirmed.Cited: Underwood v. McLaurin,49 N.C. 18.