Forsyth v. M'Cormick, 5 N.C. 472, 2 Car. L. Rep. 472 (1816)

Jan. 1816 · Supreme Court of North Carolina

5 N.C. 472, 2 Car. L. Rep. 472

Forsyth v. M'Cormick.

The defendant appealed from the County to the Superior Court, and executed an appeal bond, the condition of which was, “now if the said W. C. M‘Cormick do prosecute this said appeal with effect, then the above obligation to be void, otherwise to pay such costs and charges, as by law in such case is required."

On a motion made in the Superior Court to dismiss the appeal for the insufficiency of the bond, the case was referred to this Court, where it was submitted without argument and the opinion of the Court was delivered by

Taylor, C.J.

—The provisions of the act of 1777, § 82, are so explicit on this subject as to leave no room for argument or doubt. The giving the bond and two securities in the manner directed, is in the nature of a condition precedent, for the words are, “ that before obtaining the appeal and the condition must be for prosecuting the same with effect, and for performing the judgment, sentence, and decree, which the Superior Court shall pass or make thereon, in case such appellant shall have the cause decided against him. The condition of the bond taken in this case does not provide for performing the judgment of the Superior Court, and it would be satisfied by prosecuting the appeal with effect, and in the event of failure, paying merely the costs and charges. This omission is too substantial to be overlooked, for in reality the main, purpose for which an appeal bond is required is totally unprovided for. We think that every bond must comprehend all the objects required in the act, we do not say, in the very words of the law, but substantially, they must be secured before the appeal can be rightly constituted in the appellate Court.

Let the appeal be dismissed.