
    Arthur Waller vs. Samuel Pittman and others.
    
    This was a Scire Facias brought in Halifax Superior Court of Law, to compel the Defendants to pay a sum of money recovered by the Plaintiff a-gainst Benjamin Waller, whole securities the Defendants were, on an appeal taken from the County to the Superior Court, plea nul tiel record the bond produced in the following words: “ State of North Carolina, Know all men by these pre-sents, that We, Benjamin Waller, Samuel Pittman, and James Slotter, are held and firmly bound unto Arthur Waller, in the full sum of one hundred and sixty pounds, to the which payment well and truly to be made, we hind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals, and dated this twenty third day of May, A. D. 1792.
    The condition of the above obligation is such, that if the above bounden Benjamin Waller shall well and truly prosecute an appeal taken by him this day from the judgment of the County Court of Halifax, passed against him in favour of Arthur Waller, to the Superior Court of Halifax District, and if the decree is confirmed; or if the said Benjamin Waller shall fail to prosecute the said appeal, the said Benjamin Waller shall well and truly pay to the said Arthur Waller, twelve and an half per cent, interest on the sum decreed, then the obligation to be void; else to remain in full force and virtue.
    
      Signed, BEN. WALLER Seal.
    
    SAME. PITTMAN', Seal.
    
    
      Witness, JAMES SLOTTER, Seal.
    
    L. Long, Clerk.”
    
   By the Court.—

This is an appeal taken under the directions of an act of Assembly, prescribing the manner in which such lands shall be taken, and directing the mode of prosecuting the appeals. The Defendant ought not to be charged by virtue of such a bond, unless the provisions of the act have been substantially pursued; nor is it right to make any intendment against sureties, beyond that which they have stipulated to perform. The act of 1777 requires that the apellant shall enter into bond with two sufficient securities for prosecuting the appeal with effect, and for performing the judgment, sentence or decree which the Superior Court shall pass or make therein, in case such appellant shall have the cause decided against him. By the act of 1784, it is provided that when the judgment shall be affirmed in the Superior Court, or the appellant shall discontinue his appeal, then he shall pay to the Plaintiff in the original action, at the rate of six per cent; and this is directed to be inserted in the condition of the bond. This is increased to 12½ per cent, by the act of 1785, which is to be paid where the appeal is not prosecuted, or where the Court affirm, the judgment. From these several acts, which are all that relate to the subject, and which therefore should be taken together, it is apparent that the most effective part of the condition is left out of this bond. So that were the secu-rities able to prove that the appellant had performed the judgment of the Superior Court, it would not save the penalty. Though in ordinary cases the circumstance of the condition of a bond being insensible and repugnant, operates only to avoid the condition, and still leaves the bond single, and binding upon the obligor, yet that principle is not applicable to this cafe. There it is said to be the solly of the obligor to enter into such a bond from which he can never be released, yet here they must have supposed they were entering into a legal bond.  