Flemming v. Williams. , 3 N.C. 400 ( 1806 )

This Court, in advancement of justice, can take a new bond with two sureties in place of the old one; but said that point might be reserved for further consideration. He remembered instances of the like exercise of the Court's discretion, and divers others were mentioned at the bar. In the meantime he ordered the cause to be tried, unless an affidavit could be produced for a continuance; which being made, the cause was continued.

NOTE. — In the case of an appeal from the County Court of Nash, somewhere about 1789 or 1790, the appeal bond had but one surety, and for that cause it was moved that the appeal should be dismissed; but the Court, having made the inquiry, and finding that the single surety was a very competent one, they said the only object of the act requiring sureties was to make the plaintiff safe; and if one surety was really able to pay his recovery, it was better to sustain the appeal than to reject it and do irreparable mischief to the appellant; and they did sustain it.

NOTE. — As to sufficiency of one surety to an appeal bond, seecontra, Jones v. Sykes, 5 N.C. 281; Gibson v. Lynch, ibid., 495. See, also, Forsythe v. McCormick, 4 N.C. 359; Ferguson v. McCarter, 4 N.C. 544, 107; Smith v. Niel, 9 N.C. 14; S. v. Mitchell, 19 N.C. 237, the three last of which cases show that the appeal bond is provided for the benefit of the appellee, and if he either expressly or impliedly waive it, the Court will not afterwards dismiss the cause for the want of sufficient bond.