Speed v. Harris, 5 N.C. 434, 2 Car. L. Rep. 434 (1816)

Jan. 1816 · Supreme Court of North Carolina

5 N.C. 434, 2 Car. L. Rep. 434

Speed and others v. Harris and others.

The plaintiffs obtained a decree in the County Court of Wake, against the defendants as executors, for distributive, shares. The defendants prayed an appeal; which was allowed. The appeal bond sent up to the Superior Court, was executed by the plaintiffs. In the Superior Court, the plaintiffs moved for leave to withdraw the bond filed with the transcript; and that the appeal should be dismissed. At the same time the defendants moved for a writ of certiorari in case the Court sustained the plaintiff’s motion. It was referred to the Supreme Court to say what judgment shall be entered in this case.

Cameron, J.

delivered the Judgment of the Court:

The act of 1777 requires that the party appealing shall give bond, &c. In this case, the party praying the appeal, gave no bond. That given by the plaintiffs (through error no doubt) cannot be noticed for the purpose of giving the Superior Court cognizance of the suit. The appeal must therefore be dismissed for want of such a bond as the act requires from the party praying the appeal. And let a writ of certiorari issue in conformity with the defendant’s motion.