Ferguson v. M'Carter

delivered the Opinion qf the Court:

The Act of Assembly allows every Plaintiff or Defend» ant the right of Appeal from the County to the Superior Court; but it requires, for the benefit of the Appellee, that bond and security should be given. If an Appeal has been allowed, and the Appellant has omitted to give this security, it is in the power of the Apellee to have the Appeal dismissed; but it being for his benefit, he may, if he chuses, waive it—and this waiver may be express or *108implied. When it is express, as by entry on the docket, there the Court above ought to entertain the Appeal; if implied, as by suffering the cause to go to the Jury, he ought not afterwards to be permitted to avail himself of an advantage, which, from his conduct he has consented to abandon. The cause, therefore, should be remanded, and the Appellant permitted to proceed in his defence-leaving it to the discretion of the Judge, upon a proper case, to require further security»