#### J. S. CURRENT v. WILLIAM E. CHURCH, Clerk.

(Filed 28 January, 1935.)

1. Supersedeas A a — Recognizance may not be construed to operate as stay bond.

Defendant in a criminal action was allowed to appeal from judgment imposing a fine and a road sentence upon filing a bond for bis appearance at tbe next criminal term of tbe court with sufficient surety, but tbe stay bond required by C. S., 4650, was not filed: Meld, upon affirmance of tbe judgment by tbe Supreme Court, judgment may not be bad against tbe surety on tbe appearance bond for tbe amount of tbe fine, and as there was nothing to stay execution of tbe judgment at any time, C. S., 4654, 4655, 650, tbe recognizance may not be construed as a stay bond on the ground that tbe parties so intended.

*6592. Ball B e—

A bond conditioned upon tbe appearance of defendant at a subsequent term of court does not obligate tbe surety thereon to take tbe place of defendant and abide by tbe judgment of tbe court.

Appeal by tbe State and Board of Education of Eorsytb County from Alley, J., at June Term, 1934, of Foesyth.

By agreement tbe petition filed in tbe above-entitled cause was transferred and treated as a motion in tbe cause for return of casb bond deposited for appearance of tbe defendant in tbe case of S. v. Fowler, 205 N. 0., 608, 172 S. E., 191.

Tbe facts are these:

1. At tbe May Term, 1933, of Eorsytb Superior Court, Clyde Fowler was convicted of operating a lottery and sentenced to six months on tbe roads, and to pay a fine of $1,000 and tbe costs.

2. An appeal was taken and a “Becognizance of Defendant” in tbe sum of $1,500 was entered into by tbe defendant witb J. S. Current as surety to “personally appear at tbe next criminal term of tbe Superior Court of Eorsytb County, . . . on 19 June, 1933, ... to answer tbe charge preferred against him for lottery, . . . to do and receive what shall by tbe court be then and there enjoined upon him, . . . and shall not depart tbe court without leave.”

3. Tbe surety deposited witb tbe clerk of tbe Superior Court tbe sum of $1,500 in casb.

4. Tbe appeal of tbe defendant Fowler was beard at tbe Fall Term, 1933, and tbe judgment affirmed 10 January, 1934.

5. Tbe defendant voluntarily entered into tbe execution of bis road sentence, but is insolvent, and has failed and refused to pay tbe fine and costs imposed upon him.

6. Execution against tbe property of tbe defendant having been returned mulla bona, tbe same was served against tbe casb bond in tbe bands of tbe clerk.

Tbe court being of opinion that tbe “Eecognizance of Defendant” was not a stay bond within tbe meaning of tbe law, dismissed tbe execution and ordered that tbe $1,500 deposited witb tbe clerk in lieu of bond be returned to tbe surety.

From this ruling tbe State and tbe Board of Education of Forsyth County appeal, assigning errors.

Eastings & Boone, Peyton B. Abbott, and J. Erie McMichael for appellants.

Slawter & Wall and Broohs, McLendon & Eolderness for appellee.

Stacy, C. J.

What has happened in this case is that, instead of “giving adequate security to abide tbe sentence, judgment, or decree of *660the Supreme Court,” as required o£ appellants under C. S., 4650, the defendant Clyde Fowler executed a recognizance with J. S. Current as surety to appear at the next term of the Superior Court of Forsyth County, then and there to answer the charge preferred against him, etc. It has never been understood that a surety on an appearance bond was to take the place of the defendant and abide the judgment of the court. S. v. Bradsher, 189 N. C., 401, 127 S. E., 349; S. v. White, 164 N. C., 408, 79 S. E., 297; S. v. Schenck, 138 N. C., 560, 49 S. E., 917.

But it is said the parties intended the “Recognizance” to operate as a stay within the meaning of the law, and it should accordingly be construed. Walicer v. Williams, 88 N. C., 7. The fact is, however, there was nothing to stay the execution of the judgment at any time. C. S., 4654-4655, and 650. This was the view of the court below, and no error has been made to appear on the record.

Affirmed.