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.