Arrington v. . Smith

Daniel, J. At May sessions 1841 of the County Court of Wake, the plaintiff appealed. The Defendant, two years after the transcript of the record had been filed in the Superior Couit, moved to dismiss the appeal, because there was no appeal bond. The defendant, at any of the antecedent terms of the Superior Court, could have made the motion to dismiss) he did not do so, but went on and forced the plaintiff at one term to continue the cause by affidavit, and at another term he obtained leave of the Court for time to prepare for the trial of the cause — he moreover had caused his witnesses to be subpcgned to the first term of the Superior Court. It seems to us, that this case is within the principle and reason of the case of Den on Demise of Wallace & Walters v Corbitt, decided at this term (ante p. 45). All the facts and circumstances, disclosed by the case, are, we think, sufficient to raise an implied waiver by the defendant of an appeal bond. The judgment must be reversed, and a procedendo awarded. Per Curiam, Judgment arrested and procedendo awarded.