#### ARCHIBALD H. ARRINGTON vs. CALVIN A. SMITH.

In the ease of an appeal from the County to the Superior Court, where the cause has been continued for two years in the Superior Court and witnesses summoned on both sides, it is too late for the appellee to move to dismiss the appeal for the want of an appeal bond. He will ‘be considered as having waived his right to a bond.

Appeal from the Superior .Court of Law of Wake County, at Fall Term, 1843, his Honor Judge Bailex presiding.

This was an action on the case commenced in the County Court of Wake. . A judgment having been rendered in that Court against the plaintiff at May Term, 1841, he appealed to the Superior Court, but neglected to give an appeal bond. The cause was entered on the docket of the Superior Court of Wake County at the Fall Term, 1841, and continued-at the several terms of the Court until the Fall Term, 1843. When the cause was called for trial on the second day of that term, the plaintiff declared himself ready, but the defendant, hawing called his witnesses, stated he was not ready; whereupon the cause was left open until the next day. On the next day the defendant moved to dismiss the appeal for the want of an appeal bond. The plaintiff then moved for leave to file a bond lor costs and damages, which was refused. It appeared that a subpeena had been issued by the Clerk of the Superior Court for the defendant’s witnesses, returnable to the Fall Term, 1841. On the above facts, the Court dis *60missed the appeal and gave judgment against the plaintiff ^01’ costó °f ^ie Superior and County Courts.

From this judgment the plaintiff appealed to the Supreme Court.

/Saunders and Miller for the plaintiff.

W. II. Haywood for the defendant.

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.