#### MARTIN WOOLARD’S EXR'S. vs. RANSON WOOLARD & AL.

A case was brought from the County to the Superior Court hy *certiorari.*After the trial of the issues in the Superior Court, the appellant’s sureties at the same term suggested his death, but the Court, notwithstanding, gave judgment against them for the costs, the verdict having been against their principal. *Held*that the judgment was right, *first,*because the sureties, not being parties to the suit, had no right to mak.e the suggestion; *secondly,*because, as the issues had just been tried, it must be intended, that the death had taken place during the term.

A separate judgment may be rendered against the sureties on an appeal bond, or the judgment may be against them jointly with their principal.

Appeal from the Superior Court of Law of Pitt County, at the Spring Term, 1848, his Honor Judge Caldwell presiding.

This was an issue of *devisavit vel non,*made up and tried in the County Court, where a verdict was found in favour of the propounders of the will. It was afterwards carried by the caveator, Ransom Woolard, to the Superior Court by a writ *certiorari,*upon his entering into bond with Thomas Latham, and David P. Perry as bis sureties. In the Superior Court, the issue came on to be tried at Pitt, on the last circuit, when the jury, found a verdict establishing the will. Immediately after the .entry of the verdict, upon the record, appears the following: “Death of Ransom Woolard, suggested by Thomas Lat-ham and D. P. Perry. On motion judgment against Thomas Lath am and D. P. Perry, obligors in the *certiorari*bond, for the costs to be taxed by the Clerk, from which judgment Thomas Latham, and D. P. Perry pray an appeal to the Supreme Court which is granted.” Then follows the usual order for certifying the probate of the will to the County Court, &c.

*323*Biggs,*for the plaintiffs.

*Stanly*and *J. H. Bryan,*for the defendants.

Battle, J.

We cannot discover any error in the judgment rendered against the defendants Latham and Perry. One of their objections to it is, that their principal was dead at the time when the judgment was given, and that it could not regularly be entered up *instanter*upon the appeal bond, without making his personal representative a party. . There are two decisive answers to this objection. The first is, that we have no judicial knowledge that the principal was dead. His sureties were no parties to the suit, and had therefore no right to suggest his death, and the entry of their suggestion on the record, is a mere nullity. But if this were not so, and the death of the principal were properly brought to our notice, we are bound to assume that he died after the commencement of the term at which the issue was tried, and when the suggestion of his death was made. Upon no other supposition can the proceeding of the Court in trying the issue, and ordering the certificate of the probate to be sent to the County Court, be upheld ; for if the caveator died before the commencement of the term, the verdict and judgment were rendered against a dead man and therefore erroneous, which we are not tolpresume. Another objection to the judgment is, that supposing their principal died after the commencement of the term, judgment ought to have been rendered against him as well as against the sureties upon the appeal bound. The prevailing party may pursue that course if he chooses, but is not bound to do so. He may take a judgment against the principal upon his liability as á party to the suit, and then another and a separate judgment against the sureties on the appeal bond. If he choose to pursue the latter course, the sureties have thereby no greater burthen *324thrown upon them, and therefore have no right to complain. The judgment must be affiirmed.

Per Curiam. Jndgment affirmed.