Opinion
(December Term, 1846.)
Where the condition of a bond was that A should pay to B and C, attorneys, one hundred dollars, on condition that they cleared A of three suits and three indictments in the Superior Court, and A was cleared in the Superior Court of all the cases except one, in which he was convicted and the case was taken to the Supreme Court, where A had to employ another attorney, but the judgment below was reversed and A discharged from the prosecution: Held, that B and C had substantially complied with the condition precedent and had a right to recover from A.
APPEAL from BUNCOMBE special court in June, 1846; Battle, J.
Debt, on the bond of which a copy marked A is appended; (126) pleas, general issue, payment, set-off, and accord and satisfaction.
Upon the trial it was admitted that the plaintiffs acted as the attorneys and counsel for the defendant, and that all the suits and indictments against him were decided in his favor except one; that upon that he was convicted in Burke Superior Court of Law, and his counsel, Mr. Clingman, prayed an appeal to the Supreme Court and assisted in making up the case for that Court; that the defendant then applied to him to attend the Supreme Court to argue the case for him, when he, Clingman, informed him that it would be out of his power to attend the ensuing term of the Supreme Court; whereupon the defendant employed Mr. Caldwell, and paid him a fee of $15 to appear for him in that Court; that a new trial was granted by that Court, and at the ensuing term of Burke Superior Court the solicitor for the State entered a nolle prosequi, and the defendant, on motion of his counsel, Mr. Clingman, was discharged. The counsel for the defendant contended that the employment of Mr. Caldwell and the payment of a fee to him for his services in the Supreme Court was a payment or satisfaction of the bond, or that the condition upon which the bond was given was not performed by the plaintiffs, and that, therefore, they could not recover. But the court instructed the jury otherwise, and upon a verdict and judgment being given for the plaintiffs, the defendant appealed.
(A)
I promise to pay G. W. Candler and T. L. Clingman $100 on condition that they clear me of three suits wherein B. L. Brittain is plaintiff, also clear me in the three indictments now against him. 27 September, 1837. J. B. TRAMMELL. [SEAL]
Baxter for plaintiff.
Edney for defendant.
There was a condition precedent in the bond, and the plaintiffs were bound to show to the court and jury that they (127) had performed that condition. The defendant insisted that the plaintiffs had not cleared him of the six suits mentioned in the bond, but that he was compelled to employ another lawyer to attend to one of the indictments sent up to the Supreme Court, and that he was out of pocket $15 on that account. We think the objection taken by the defendant was properly overruled by his Honor. The condition has been substantially performed by the plaintiffs. In criminal cases the judgment of acquittal or conviction, properly speaking, is in the Superior Court exclusively. This Court only gives an opinion what it should be; and in this case the opinion was that the previous conviction was erroneous, and that the defendant was entitled to a venire de novo. To get the benefit of it, the defendant accepted the services of the plaintiffs, and then they went without day upon a nolle prosequi. Therefore, the judgment must be
PER CURIAM. Affirmed.
Cited: Kittrell v. Hawkins, 74 N.C. 415.