SALISBURY,

MARCH TERM, 1797.

#### Yarborough *v.*Giles.

Where, in appeal from the County Court, and a new trial had in the Superior Court, a verdict tor as great a sum w is obtained in the Superior Court as had been rendered in the County Court, Haywoob Judge, thought judgmentmight be entered up *insianter*against the appellant and his securities, under the act of 1785, *Rev. c.*233, s. 2, But Stone, Judge, was of opinion the act did not apply in such case.

This was an appeal from the County Court, and upon a trial here this term, there was a verdict for the Plaintiff for as great a sum as there was in the County Court; and the Plaintiff'now moved by his counsel to enter up judgment against the sureties in tiie appeal bond, according to the act of 1785, c. 2, s. 2.

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 *5220f (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.