Mecklenburg County NcArchives Court.....Andrew McBryde, John Orr V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 30, 2009, 10:06 am

Source: Nc Reports
Written: 1819

John A. Orr v. Andrew McBryde et al

From Mecklenburg

May Term 1819

Appeal bond contained no covenant to perform the judgment, sentence, or decree 
of the Superior Court: but merely a covenant to pay all such costs and charges 
as by law is required in such case. No judgment can be rendered against the 
securities in such bond, it not being taken in the manner prescribed by the 
Act of Assembly regulating appeals from the County to the Superior Court.

John A. Orr sued out an original attachment against Nathan F. Orr, and Andrew 
McBryde was summoned as a garnishee. Having made his garnishment, the County 
Court condemned in his hands, to satisfy the recovery of the Plaintiff, the 
sum of $374. From this judgment of condemnation, McBryde appealed to the 
Superior Court and entered into the following bond with securities, to-wit:

STATE OF NORTH CAROLINA } November Session, 1814
  Mecklenburg County    }

Know all men by these presents that we, Andrew McBryde, (being summoned as a 
garnishee in the case of John A. Orr v. Nathan Orr) William Berryhill and 
William Carson, are held and firmly bound unto John Allen Orr, in the just sum 
of one hundred pounds, for which payment well and truly to be made and done, 
we bind ourselves, our heirs, executors and administrators, jointly and 
severally, firmly by these presents, sealed with our seals, and dated 30 
November, 1814.

The condition of the above obligation is such, that whereas the above bounden 
Andrew McBryde hath prayed and obtained an appeal to the Superior Court to be 
held for the County of Mecklenburg, at the Court House in Charlotte, on the 
seventh Monday after the fourth Monday in March next, in the suit wherein John 
A. Orr is Plaintiff, and Nathan F. Orr and Andrew McBryde as garnishee, are 
Defendants; now if the said Andrew McBryde garnishee aforesaid, do prosecute 
said appeal with effect, then the above obligation shall be void; otherwise to 
pay all such costs and charges as by law in such case is provided.
                                   AND. McBRYDE, (Seal.) 
                                   WM. BERRYHILL, (Seal.) 
                                   WM. CARSON, (Seal.)
Witness: Isaac Alexander

The judgment of the County Court having been affirmed by the Superior Court, 
the Plaintiff sued out a scire facias against the securities for the appeal, 
to shew cause why judgment should not he entered up against them for the 
amount for which it had been rendered against the Appellant, Andrew McBryde; 
and they shewed for cause that the appeal bond was not taken pursuant to the 
directions of the Act of Assembly regulating appeals. The case was sent, to 
this Court.

By the Court - This case is not to be distinguished from Forsyth v. McCormick, 
4 N. C. 359, where the condition of an appeal bond expressed in the same 
language with this, was held to be too great a departure from the act of 
Assembly prescribing the form, and essentially in not securing the main 
purpose for which an appeal bond is required. This bond contains no covenant 
to perform the sentence, judgment or decree of the Superior Court. 

Judgment must be entered for the Defendants.

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