People ex rel. Titus v. Judges of the Court of Common Pleas

Majority

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The People, ex rel. S. & O. Titus, against The Judges of the Court of Common Pleas of the County of Dutchess.

Headnote

On appeal to the C. P. from the judgment of a justice, the party need not execute the appeal bond.

It is sufficient, if executed by competent sureties.

One of two parties cannot bind the other by executing an appeal bond for both.

So of two partners.

On appeal from a justice’s court by S. and O. Titus, against Schermerhorn, the C. P. of Dutchess dismissed the appeal, on the ground that the appeal bond was executed by only one of the appellants, being signed and sealed by him thus; 11 Stephen & Obadiah Titus, (L. S.)”

On the Judges’ showing this for cause,

A motion was now made for a peremptory mandamus, commanding them to set aside their rule dismissing the appeal; and to proceed upon it.

H. Swift, for the motion.

T. J. Oakley, contra,

said the statute (sess. 47, ch. 238, s. 37,) required the bond to he signed by the party appealing. The word party is often used in the same section; and in a sense which, it cannot he doubted, extends to all the parties. Thus, either party conceiving himself aggrieved, may appeal. The party appealing is to serve a notice signed by the party appealing, &c. So the word appellant, although grammatically singular, was doubtless intended, as used in this section, of all the parties who appeal. Thus, in case judgment is rendered against the appellant, the bond is that

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he shall pay, &c.. If the judgment may have been rendered against the appellant before the justice, the further condition shall be added, &c. and so in various other instances, (which he put) where party, or appellant, in the singular, has a plural meaning. Is the case before the Court an exception 1 It would seem to be necessary that the party should himself execute the bond, in order to signify his assent to the appeal, and give the'C. P. jurisdiction. The statute concerning writs of error, (1 R. L. 143, s. 2,) expressly provides for an absent party, and requires three sureties ; when otherwise two would be enough.

Clearly one of two men, though partners, cannot bind the other by specialty upon the footing of his general authority. But we think there is no necessity for the party to give the bond, provided the security is fully competent without him. The main object of the bond is, not to give the Court jurisdiction, though it is made incidentally necessary, for this purpose, by the statute; but to make the appellee secure in recovering his demand. This purpose is just as well answered without the party, as with him, provided competent sureties execute the bond.^[1] The Court below erred; and the motion must be granted.

Rule for a peremptory mandamus.

(a) (a) Barnes v. Bulwer, (Carth. 121,) and Goodtitle v. Bennington, (Barn. 75,) S. P. upon the English statute, which requires the party to enter into recognizance, in order to stay execution upon writ of error brought.