Drouilhat v. Rottner

13 Or. 493 | Or. | 1886

Waldo, C. J.

Section 70 of the Justice’s Code declares-, that on an appeal from a Justice’s Court to the Circuit Court, “the undertaking of the appellant must be given with one or more sureties,” etc. The question presented is, whether it be necessary to its validity that the appellant himself sign the undertaking.

The statute 16 & 17 Car. II., c. 8, sec. 3, enacted that, no writ of error in certain cases should be stayed “unless the plaintiff or plaintiffs in such writ of error shall be bound ” to the defendant in error “ in such reasonable sum as the court to which the writ of error shall be directed shall think fit.” In Barnes v. Bulwer, Carth. 121, this statute was held to be satisfied when the plaintiff in the writ, without entering into the obligation himself, “ liad found two sufficient men to be his bail.” So in Byron v. Deardon, 8 East, 288, cited by respondent’s counsel, the court said, to the objection made under the same statute, that the statute required the plaintiffs themselves to enter into the obligation “that they thought in reason and substance the act would be satisfied by plaintiffs in error procuring responsible persons to enter, into the obligation required.” And the case of Dixon v. Dixon, 2 Bos. & Pul. 443, holds that where one is required to become bound with sureties, the law is satisfied by an undertaking with sureties; for as Field, J., said in Curtis v. Richards, 9 Cal. 38, the appellant is already bound, and no purpose could be served by his joining with the sureties. (See also Dickinson v. Eaton, 2 Mich. 337, and Vallence v. Sawyer, 4 Me. 62.

In Cavense v. Butler, 6 Binn. 52, an act which directed that the defendant who appealed from the judgment of a justice of the peace shall be bound with sureties, was satisfied by his finding sureties without himself joining in the obligation. (And see Boyce v. Wilkins, 5 Serg. & R. 329; N. American Coal Co. v. Dyett, 4 Paige, 273.) These cases show that, to give a,n undertaking, which is all that the statute requires of the appellant, it needs not that the appellant himself shall sign the undertaking. It follows that the judgment of the court below should he affirmed.

Judgment affirmed.