M'Gimpse v. Nash Vail

5 N.C. 408

Opinion

Tayxou, Judge,

delivered the opinion of the Court:

It would be a manifest violation of the acts relative to appeals, if securities were, discharged by a nonsuit, which was not the ultimate judgment of the Court, or which the parties in a spirit of accommodation, or from a sense of justice, mutually agreed to set aside.

The nature of the engagement entered into by the securities to an appeal bond is, to perform the judgment of the Superior Court: the meaning of which is, its final determination or sentence upon the suit. Until that is rendered, the Court maintains jurisdiction over the cause, and may make such orders as justice requires, and the legal course of judicial proceedings sanctions. With equal force it might be contended, that a verdict in fa-vour of the Defendant operated a discharge to the securities, although a new trial should be granted, as that a nonsuit erroneously awarded by the Court should produce the same effect, although it were afterwards set-aside on a more attentive consideration of the subject,»— Let the motion be disallowed.