#### THOMAS R. UNDERWOOD vs. DUNCAN McLAURIN.

It is error in a Court to rescind an entry made on a previous day of the same term, which truly states a fact that did occur.

Appeal from tire Superior Court of Cumberland, bis Honor, .Judge-PeesoN, presiding.

Tbe case was agreed as to tbe facts, and was as follows: Tbe defendant, Duncan McLaurin, was tbe bail of one Mc-Duffie, and a sei. fa. issued against him as such, returnable to tbe County Court of Cumberland. At the return term of the sci. fa., tbe defendant put in pleas to the same, which accordingly stood over to tbe next term. On Monday of the next term the defendant brought in his principal and surrendered him in discharge of himself as bail, and this record was then made. “ The principal, N. K. McDuffie, is surrendered in open Court by Duncan McLaurin, his bail, in discharge of himself on Monday of this term .whereupon, the said Mc-Duffie was permitted go without day on the payment of costs. Afterwards, on the same day, the plaintiff’s counsel gave notice, that he woiÜd move, during the term, to set aside the proceeding aforesaid, because the plaintiff had not been notified that the surrender would be made. The motion was accordingly made on Friday of the term, and on considering the same, the said County Court adjudged, “ that the order accepting the surrender of N. K. McDuffie, in the case of T. R. Underwood v. Duncan McLaurin, bail of said McDuffie, in discharge of his bail, be rescinded, and the case stand on the trial docket as before, without prejudice to the defendant.” The ground upon which this order was made, was as follows: The defendant’s counsel had told the plaintiff’s counsel, that his client would surrender McDuffie, in open Court, as soon as the Court was through with the business in hand. While the business still occupied the Court, the plaintiff’s counsel enquired of the Court, whether any other business would be taken up before dinner than that in which they were engaged, and he was informed that none other would be taken up be*18fore dinner. Whereupon the plaintiff’s counsel retired from the Court to his chamber, and had no cognizance of the proceeding complained of. The surrender was made in open Court before dinner, and the principal, McDuffie, on being discharged, immediately went out of reach of his bail, and was beyond his reach when this motion was made.

Erom this order of the County Court to rescind the previous proceeding, &c., an appeal was taken to the Superior Court, where, on consideration of the case agreed, his Honor, Judge Person, reversed the order of the County Court; from which the plaintiff appealed to the Supreme Court.

Shepherd and J. Winslow, for plaintiff.

McKay, for defendant.

Battle, J.

When the defendant surrendered his principal in open Court in discharge of himself as bail, he was acting in the clear exercise of an undoubted legal right. 1 Rev. Stat. ch. 10, sec. 4; Bev. Code ch. 11, sec. 5 ; Moody v. Stockton, 3 Dev. Rep. 431. The entry of the fact made upon the records of the Court was therefore proper, and the Court could not, by their subsequent action, deprive the defendant of the benefit of it. Their attempt to do so by rescinding the entry, was an error, which he had a right to have corrected in the Superior Court, upon his appeal to that Court. Williams v. Beasley, 13 Ire. Rep. 112 ; Murphrey v. Wood, 2 Jones’ Rep. 63.

There is nothing in the case of Williams v. Floyd, 5 Ire. Rep. 649, relied upon by the plaintiff’s counsel, which militates, in the least, against these positions. In that case the only question was whether, under the circumstances therein stated, the plaintiff was entitled to a judgment against the de-fendantand the sureties to his appeal bond. It seemed to be admitted on all hands, that the sureties for the defendant’s appearance had been discharged by their surrender of him in the County Court.

*19Tbe judgment of tbe Superior Court is affirmed, wbicb will be certified as tbe law directs.

Bee CubiaM, „ ' Judgment affirmed.