Bradhurst v. . Pearson , 32 N.C. 55 ( 1849 )

On the part of the defendant it is urged that, by the nonsuit in the original suit, at the Fall Term, 1845, the case was out of court; and by setting aside the nonsuit as to the defendant McElrath and prosecuting the suit against him alone, the bail was discharged. The objection proceeds upon the ground that any alteration of a writ whereby the nature of the action is changed, after bail has been given, will discharge the bail. This is true, and for the reason that after the alteration the action ceases to be the one to which the bail agreed to answer, but the change must be one which alters the nature of the action. Bryan v. Bradley,1 N.C. 177. Here the action continued the same, and the obligation of the defendant, as special bail for each defendant, continued the same. It is a mistake to suppose that the nonsuit so put the cause out of court as finally to discharge any of the parties. Upon setting it aside the case is reinstated and continues the same. The order made in setting aside the nonsuit is in effect the same as if it had been unconditional and the plaintiff had then entered a nol. pros. as to the defendant Erwin. This he certainly could have done without discharging the bail of McElrath.

In this State all contracts are joint and several, and an action can be maintained against the whole or any number of the joint contractors. And, in an action of assumpsit against two persons, the jury may render a verdict against one and in favor of another (Jones v. Ross, 4 N.C. 335), just as in an action of tort. When, therefore, the nonsuit was set aside as to (57) Erwin alone, and the suit continued on the record against McElrath, it was in law the same action.

It is further objected that the time the sci. fa. issued no judgment had been rendered by the court on the verdict against McElrath. The case agreed shows that the record of Spring Term, 1846, was, at Spring Term, 1849, of the same court, amended by an order of court, directing a formal judgment to be entered on the verdict against McElarth. It has been repeatedly decided that any court possesses the power to amend its own records so as to make them conform to the truth, and that we have no right to interfere with its exercise. When so amended, it is the duty of the clerk in whose custody it is, in giving a transcript of it, to certify it as it is amended, as if it were originally full and complete, without noticing the order to amend. That order appears upon the records of the court at the term when made, if a different one, and is his authority for so altering the original.

We have nothing to do with the amending order, and cannot look behind the record as certified to us.

We see no error in the judgment below, and it must be affirmed.

PER CURIAM. Judgment affirmed.

Cited: Neil v. Childs, post, 198; Hamlin v. McNiel, post, 306; Jacksonv. Hampton, post, 585; Pendleton v. Pendleton, 47 N.C. 137; Parsons v.McBride, 49 N.C. 100.

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