Burr v. Burr

10 Paige Ch. 166 | New York Court of Chancery | 1843

The Chancellor.

Although the statute requires a bond to the adverse party upon the appeal, the bond must be given in such form as to be valid. . And if a husband cannot give any bond to bis wife which can be legally enforced in her name, the appeal bond must be given to her next friend, or to the register of the court, or to some other trustee, for her use and benefit. By the common law, the husband and wife are considered one person • and a bond given by the husband to the wife would be invalid, as he canpot covenant with her. (Coventry’s Coke, 112.) If a man gives a bond to a feme sole and afterwards marries her the bond is discharged.' So if she marries one of the obligors in the bond. (Com. Dig. Baron & Feme, D. 1.)

The wife is undoubtedly the adverse, party in this case. And if it was an appeal from a decree granting an absolute divorce, or a decree annulling the marriage and declaring it void, an appeal bond given to the complainant in her own name would be valid. For if the decree should not be reversed upon the appeal, she would be considered as a feme sole from the date of the original decree. And if it was reversed, the condition of the bond would have been complied with. But in the case under consideration I think the bond should have been given to the next friend of the complainant, or to the register of the court as her trustee j which would have been a sufficient compliance with the statute requiring a bond to be given to the adverse party. The appellant, however, may amend, by filing a new bond in the penalty of $250, to perfect his appeal, or by depositing the amount in money, with the register, nunc pro tunc.

If the amount of alimony decreed to be paid hereafter, as .well as that which is now due and payable, is necessary to be secured, to make the appeal a stay of the execution for the amount now due, under the provisions of the 82d section of the statute relative to appeals, (2 R. S. 606,) the bond in this case is wholly insufficient. For the amount now due, and that which will probably become due during the residue of the respondent’s life, according to the usual tables of mortality, would be at least equal to the whole penalty of the bond. I am inclined to think, however, that in such a case as this the execution for the amount which is now due should be stayed, upon giving security by a bond in double that amount. But that will not stay the execution of process of sequestration, to compel the giving of security to the trustee of the respondent for the payment of the future alimony, unless such security is given in conformity with the decree, and deposited with the register to abide the final decree of the court for the correction of errors, as required by the 84th section of the statute. The decree in this case directs the payment-of money, and also requires the execution of certain securities, in trust, to secure future payments. In such a case, in order to stay the proceedings upon both branches of the decree, the provisions of both sections must be complied with. And if only one of them, which is applicable to but one part of the decree, is complied with, it will not stay the proceeding under the other part of the decree appealed from.

Although the execution of a bond, under the provisions of the 82d section of the statute relative to appeals, does not of itself stay the sheriff from proceeding upon an execution which had been previously issued, the court, m its discretion, will direct the execution to be stayed, upon the giving of the security and paying the sheriff’s fees upon the execution. (Clark v. Clark, 7 Paiges Rep. 607.) There must therefore be an order to stay all further proceedings upon the execution in the hands of the sheriff, upon the execution of a new bond to the register, or to the next friend, in trust for the complainant, in the penalty of at least fifty thousand dollars, with two sufficient sureties, to be approved by the proper officer and filed with the register within ten days, and paying the sheriff’s fees. This stay of the execution, however, is upon the condition that the ad interim alimony is paid from time to time, as directed by the former order of the court; to be deducted from the amount of permanent alimony, decreed to be paid, if the decree of this court is affirmed upon the appeal. But the complainant’s solicitor is to be at liberty to proceed to enforce the giving of the security for future alimony, under the other branch of the decree, unless the defendant shall think proper to stay such proceedings, pending the appeal, by giving the security required by the decree, and filing it with the register, to abide the final decision of the appellate court.