Smith v. . Mitchell and Another , 63 N.C. 620 ( 1869 )

PeaesoN, C. J.

The position that the suit was out of Court b>y the force and effect of the rule, the condition not having been complied with, may be disposed of in two ways.

1. It is familiar learning, that when the performance of a condition subsequent becomes impossible by the act of God or of the public enemy, or by the act of law, the condition is saved.

In our case the performance of the condition, was made impossible by the act of law, for by reason of the construction given to the law by the justices, no Court was held, and whether this construction was well warranted or not, is immaterial, as the plaintiff was in no default.

2. The purpose of requiring a prosecution bond, is to .secure the defendant’s costs in case' the plaintiff fails in the ..action, and rules of the kind we are considering, are conditional, .and at all times under the control of the Court,.to be so shaped and modified at its discretion as to answer the purpose o f ■securing the defendant without causing unnecessary injury or inconvenience to the plaintiff.

We consider that the matter was in the discretion of his JHonor. We are satisfied that it was exercised in a way tot promote the ends of justice.

PeR Curiam. Judgment affirmed.