#### Smith and Stanly v. Niel and others.

From Bertie.

íf the appellee in the Superior Court suffers the cause to go to the Jury, it is an implied waiver of any objection arising from the defectiveness of the appeal bond.

This case came a second time before this Court* on a motion by Wood, one of the Defendants, to dismiss the appeal on the ground of a formal defect in the appeal bond. The cause had once been submitted to a Jury. At March term, 1822, the Supérior Court of Bertie sustained the appeal and overruled the motion to dismiss, and Wood appealed. The facts appear in the opinion of the Court.

*

Vide ante Vol. 1, page 341.

*15Per Curiam.

The appeal was taken up to March term, 1820, of Bertie Superior Court, at which time it was continued. At t!ie subsequent term, commissions were moved for by Wood, and the cause was continued. At March term, i 821, the Jury was impanncllcd, and from the judgment then rendered, the first appeal was brought to this Court, where it was decided at Juste term, 1821. It was not, until March term, i 822, that a motion was made in the Superior Court of Bertie to dismiss the appeal. This must be considered as an implied waiver of any defect in the appeal bond, according to the case of Fsrgusm v. McCarter, (JO*. C. Term Üep. iOf,.)