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.
DANIEL, J.
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.