Opinion
June Term, 1828.
From Richmond.
1. Debt and not assumpsit is the proper remedy against the stayer of execution, when the judgment is dormant, and it lies against him without joining the principal.
2. Whether the seal of the justice is necessary to a valid judgment, quaere; but the want of it, as an objection, is too late after verdict.
THE defendant was warranted in debt as surety for the stay of execution on a judgment against one Neil Buie. After a verdict for the plaintiff the defendant moved in arrest of judgment for the following reasons:
Nash for the plaintiff.
No counsel for the defendant.
1. Because debt would not lie against a surety for the stay of execution.
2. Because of the nonjoinder of Neil Buie.
3. Because neither the original warrant or the judgment thereon nor the stay of execution were under the seal of the justice.
His Honor, Judge Norwood, arrested the judgment, and the plaintiff appealed.
The first reason for arresting the judgment is that debt will not lie upon the defendant's liability as surety for the stay of the execution. Such suretyship is tantamount to a judgment, because execution may issue upon it against the surety, and he is as much bound as the principal, (379) and for that reason assumpsit will not lie against either in case the judgment became dormant. Bain v. Hunt, 10 N.C. 572.
The second objection is that debt will not lie against the surety without joining the principal in the action with him.
Laying aside any construction of the act of 1789, Rev., ch. 314, which in its spirit tends to the severance of contracts, it is to be observed that in the present case there was not a judgment against two, but a judgment against one, and a liability of another for the same debt as surety. They were both bound, but not eodem modo. I therefore think that an action may be brought against either.
The third reason for arresting the judgment is that the justice's seal was not affixed to the warrant, judgment, or stay of execution upon which the action is brought. Whatever force there might have been in this objection, if taken at an earlier stage of the proceedings, it is sufficient now to say that it comes too late. It would be against the order of pleading and very inconvenient to suffer an objection to the evidence to prevail after a case has been heard and decided upon its merits. The reasons in arrest of judgment must be overruled, and judgment entered for the plaintiff.
PER CURIAM. Judgment reversed, and judgment for the plaintiff.
Approved: Barringer v. Allison, 78 N.C. 79.