Smith v. . Mitchell and Another
Supreme Court of North Carolina
Motions, to dismiss an action for want of a prosecution bond, ■and to give new security, beard by Pool, J., at Bertie, Spring Term 1869. The action had been brought in the County Court at May Term 1868, and there was then a rule taken against the plaintiff, to justify the prosecution bond on or before Tuesday of the next August Term, or the suit to be dismissed. The latter Term was not held, because the Justices consid■ered that their offices had terminated.
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Motions, to dismiss an action for want of a prosecution bond, ■and to give new security, beard by Pool, J., at Bertie, Spring Term 1869. The action had been brought in the County Court at May Term 1868, and there was then a rule taken against the plaintiff, to justify the prosecution bond on or before Tuesday of the next August Term, or the suit to be dismissed. The latter Term was not held, because the Justices consid■ered that their offices had terminated. The County Court Clerk delivered the papers in this case •tyith others) to the Clerk of the Superior Court at Eall Term 1868. At that…
1Opinion of the CourtPeaesoN, 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…
2Cited by2 opinions
- Baggarly v. . CalvertSupreme Court of North Carolina · 1874
- Williams v. BaileySupreme Court of North Carolina · 1919