Long v. . Meares

Supreme Court of North Carolina

Long v. . Meares

145 S.E. 7, 196 N.C. 211, 1928 N.C. LEXIS 321

CourtSupreme Court of North Carolina

DecidedOctober 24, 1928

StatusPublished

Cited by3 cases

This text of 145 S.E. 7 (Long v. . Meares) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Long v. . Meares, 145 S.E. 7, 196 N.C. 211, 1928 N.C. LEXIS 321 (N.C. 1928).

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Opinion

BrogdeN, J.

Did the second bond for $225 supersede the original bond of $300, or are said bonds cumulative?

The defendant contends that, when the new bond for $225 was executed by a different surety, he was thereby relieved of liability on the original $300 replevin bond. The judgment requiring- the giving of the new bond of $225 made no reference to the original replevin bond of $300 which the defendant, O. Meares, signed as surety. The determinative principle of law is thus stated in the headnote of Nimocks v. Pope, 117 N. C., 315, 23 S. E., 269: “A surety on a replevin bond, given for the return of property in an action of claim and delivery, by signing such bond makes the defendant principal his agent to compromise plaintiff’s claim for damages and upon a compromise being made by such defendant, without the knowledge or consent of the surety, the court is authorized to enter up judgment against the defendant and his surety in accordance with such compromise,” While, of course, it is fully recognized in this jurisdiction that extension of time granted to the *213 principal or other acts which may result in substantial prejudice to the surety will discharge such surety; nevertheless, this principle does not apply to a replevin bond given in a pending suit in conformity with the provisions of the statute. The reason is that, in such cases, sureties on such bonds within the limits of their obligation are considered parties of record, and the defendant,, their principal, becomes their duly constituted agent to bind them by compromise or adjustment or in any other manner within the ordinary and reasonable purview and limitation of the action. McDonald v. McBryde, 117 N. C., 125, 23 S. E., 103; Wallace v. Robin son, 185 N. C., 530, 117 S. E., 508; Trust Co. v. Hayes, 191 N. C., 542, 132 S. E., 466.

As we interpret the present record and the law applicable thereto, we are of the opinion that the judgment of the triál’judge was correct.

Affirmed.

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BrogdeN, J.

Did the second bond for $225 supersede the original bond of $300, or are said bonds cumulative?

The defendant contends that, when the new bond for $225 was executed by a different surety, he was thereby relieved of liability on the original $300 replevin bond. The judgment requiring- the giving of the new bond of $225 made no reference to the original replevin bond of $300 which the defendant, O. Meares, signed as surety. The determinative principle of law is thus stated in the headnote of Nimocks v. Pope, 117 N. C., 315, 23 S. E., 269: “A surety on a replevin bond, given for the return of property in an action of claim and delivery, by signing such bond makes the defendant principal his agent to compromise plaintiff’s claim for damages and upon a compromise being made by such defendant, without the knowledge or consent of the surety, the court is authorized to enter up judgment against the defendant and his surety in accordance with such compromise,” While, of course, it is fully recognized in this jurisdiction that extension of time granted to the *213 principal or other acts which may result in substantial prejudice to the surety will discharge such surety; nevertheless, this principle does not apply to a replevin bond given in a pending suit in conformity with the provisions of the statute. The reason is that, in such cases, sureties on such bonds within the limits of their obligation are considered parties of record, and the defendant,, their principal, becomes their duly constituted agent to bind them by compromise or adjustment or in any other manner within the ordinary and reasonable purview and limitation of the action. McDonald v. McBryde, 117 N. C., 125, 23 S. E., 103; Wallace v. Robin son, 185 N. C., 530, 117 S. E., 508; Trust Co. v. Hayes, 191 N. C., 542, 132 S. E., 466.

As we interpret the present record and the law applicable thereto, we are of the opinion that the judgment of the triál’judge was correct.

Affirmed.

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Bluebook (online)

145 S.E. 7, 196 N.C. 211, 1928 N.C. LEXIS 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-meares-nc-1928.

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