#### JAMES McK. ROBESON v. DAVID LEWIS and ROBERT M. DEVANE.

An action on a bond, executed by a defendant, and conditioned to pay and satisfy all costs and damages wMch might be awarded to the plaintiff, in a certain action then pending, is well brought against such defendant and Ms surety, although judgment had gone against the defendant in the original action, which judgment was claimed to have been satisfied.

Where a jury, by the consent of the parties to the action, brought in their verdict in the absence of the presiding Judge, and found all the issues in favor of the plaintiff, but failed to assess damages as they had been instructed to do, in case they should so find, and the verdict was received and recorded by the Clerk; and the Judge coming in before the jurors left the Court room, directed them to retire, and find a verdict according to their instructions, (no suggestion of any improper conduct on the part of the jury being made): it was held, that there was no such irregularity in the return of the verdict as would vitiate it, and justify a new trial.

(The case of Willoughby v. Threadgill, 72 N. C. Rep. 438, cited and approved.)

Civil aotioN, tried before Russell, J., at Spring Term, 1874, Bladen Superior Court.

The complaint alleged :

That previous to the commencement of this action, the plaintiff commenced an action against the defendant, David lewis, for the recovery of real estate, and damages for withholding the same. Before answering the complaint in said action, the said defendant, and the defendant Robert M. Devane, executed under their hands and seals, and filed with the Clerk of the Superior Court of Bladen county, a bond whereby they bound themselves, their heirs, executors, administrators and assigns in the sum of five hundred dollars, to the plaintiff. The condition of which bond was such, that if the said David lewis should pay and satisfy all cost and damages which might be awarded to the plaintiff in said action, and well and truly pay all judgments obtained against him in said action, the above obligation should be void, otherwise it should remain in force/**

*108In that action the plaintiff obtained a judgment against the < defendant, David Lewis, for .three hundred dollars damages, \ and one hundred and thirty dollars cost. Execution issued on said judgment, and was returned unsatisfied. The plaintiff demanded judgment for five hundred dollars and cost.

The defendants denied the allegations in the complaint, and alleged: :

That the plaintiff has a judgment of the Superior Court of Bladen eonnty, against the defendant for this very cause of ac- ; tion, and that the same has'been satisfied.

The plaintiffs by an instrument in writing and under seal, i released the defendants from all claims for damages arising ; from the cause of action set out in the complaint, on condition of the peaceable surrender of certain lands, and the payment of certain rents, which terms have been strictly complied with and performed in every particular.

After his Honor had charged the jury and they had retired, he asked if there was any objection to the verdict being taken by the Clerk. The counsel for both parties assenting for the Clerk to take the verdict, his Honor, after directing the Clerk to keep the Court open and take the verdict, left the bench. During his absence, and a very short time before his return,

■the jury came in and returned a verdict in favor of the plaintiff, without saying anything as to the damages. This verdict was received and recorded by the deputy clerk.

Upon his Honor’s return to the bench, he asked what the verdict was, and upon hearing it, directed the jury, who were still in Court, to again retire and return a verdict according to the instructions which they had received ; which were “that if they found certain issues in favor of the defendants, to return áxyerdict in favor of the defendant, and say nothing more; but if tEeyJbund these issues for the plaintiff, then to inquire into the damages, and return a verdict assessing the damages.

One of the jurors said to his Honor that, as he understood it, the jury had agreed on three hundred dollirs damages, if ITny had to be assessed.

*109His Honor then directed the jury to go to their room and make up a verdict according to the instructions.

The counsel for the defendant was present, and his Honor asked how long the jury had been separated, and was informed that they had not been out more than five minutes.

He then asked if there was any suggestion that jurors had been .spoken to about the ease by interested parties or others? No suggestion of this kind was made.

The jury again came into Court and rendered a verdict in favor of the plaintiff, assessing damages at three hundred dollars.

The defendants thereupon moved for a new trial; the motion was overruled and judgment given for the plaintiff, and thereupon the defendants appealed.

JV. A. McLean, Giles Leitch and W. McL. McKay, for appellants.

Lyon dk Lyon, contra.

ByNum, J.

1. The parties are not the same in this as in the former action, nor is the cause of action the same. The liability of the defendants, by the express provisions of the bond, was a contingent one, dependent upon the failure of the defendant, Lewis, to pay damages which should be assessed against him in the action for the recovery of the land. This action, therefore, was properly brought.

2. The objection to the regularity of the verdict is put to rest, adversely to the defendant by the decision of this Court in the ease of Willoughby v. Threadgill, 72 N. C. 438, and many other cases. Indeed, the case stated, does not show that any objection to the regularity of the verdict was made at the time in the Court below, nor does it show upon what points the appeal was taken. In this the case is defectively,stated.

There is no error.

PER CüRIAM.

Judgment affirmed.