Smith v. Parker

Decided December 15, 1861

Court of Appeals of South Carolina · decided 1861-12-15

BEFORE WITHERS, J., AT UNION, FALL TERM, 1861. The report of bis Honor, tbe presiding Judge, is as follows : “ More than a year and a day had expired from tbe return day of tbe writ in tbis case, when tbe motion for leave to file a declaration was made in beb.alf of plaintiff. But less than a year and a day bave expired from tbe return terna of tbe writ, when tbe appearance was entered on behalf of defendant ; and no Court was held in tbe spring of tbe present year.

Decided 1861-12-15

¶1The opinion of the Court was delivered by

O’Neall, C. J.

¶2The point, in this case, was decided by the Bank vs. Della Torre, 2 Sp. 501.

¶3The point there decided did not then meet with my concurrence, as will be seen by my dissent, at 512. That expressed my own opinion then and now, and I am happy to have the concurrence now of my brother Johnstone in the same view.

¶4We, however, think while we should be ready to overrule that decision, in a full Court, that it is better now to be governed by it.

¶5The motion is therefore granted.

Johnstone, J., concurred.

¶6Motion granted.