Ex parte Chryslin

4 Cow. 80 | N.Y. Sup. Ct. | 1825

Per Curiam.

The bond was defective. The clause relative -to paying the judgment below, with interest, and costs of the appeal, &c. was omitted, which is a material part of the condition required by :the.statute.^(a) This being so, the act is peremptory that the appeal, shall not be received.' It had no force or effect whatever. (Sess. 47, ch. 238, s. 36.) The Court had no discretion. It seems to be the intention of the legislature that the party shall not be heard on appeal, unless he comply .strictly with the terms of tire act. The Court below acquired no jurisdiction of .the appeal. There is no cause concerning which we cair interfere. In this view, they had no power to amend the bond. After being possessed of the cause, they may exercise the ordinary power of amending, as we' held in' the 'case cited, of Tompkins v. Curtiss ; but they cannot, do this till the cause is before them. The motion must be denied.

Rule accordingly.

(a) Vid. ante, p. 61.