Yarborough v. Giles ( 1797 )

Judge Haywood.

It may be done, the act is express. Judge StoNE — The sureties are not in court:, if a judgment is now entered against them, it will be to condemn them unheard : the law which says this, is a.harsh one, and should be construed with all possible strictness according to the letter: the act says, when any appeal prayed shall not be prosecuted, or "the court before wuotn the appeal may be determined, shall affirm the judgment, then shall the appellant he decreed to ¡¡ay to the appellee, twelve and a half per cent, interest, 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, should hereafter make part 0f (jls records sent up to the Superior Court, on which judgment may be instanter entered up against the appellant and his securities. The sentences respecting She twelve and a half per cent, and that of entering up judgment against the sureties, were conjoined by the particle and — judgment may be entered instanter against the sureties, where the appeal is not prosecuted, or where the judgment is affirmed. A judgment is not affirmed where there is a new trial in the, court above, for then that court gives a new judgment. The judgment, of the County Court is only affirmed when the appeal is not prosecuted a,)(j the appellee for that cause moves for an affirmation of the judgment below. Thai is not the present case, the appeal has been prosecuted.

Judge Haywood. — Í think there are two cases specified in the acr, that entitle the Plaintiff to enter up judgment ; first, if the appeal shall not be prosecuted ; secondly, if the judgment shall be affirmed — and that the affirmation of judgment here spoken of, intends a judgment in the Superior Court, obtained for the same or a greater sum than the judgment in the County Court.— The affirmation here spoken of, is not meant of an affirmation upon motion for want of prosecuting the appeal ; for then the latter part of the sentence means the same as the former part: when it is evident from their disjunction by the Assembly, that they were meant to express different circumstances.

Judge Stowe.

Í am of opinion the act does not necessarily embrace the case now before the court. Í am wil'ling, however, a notice may be issued to shew cause. So the Plaintiff did not obtain judgment instanter.

Note. — Hahwooh’s opinion seems the correct one, as it is constantly acted upon.