14 N.J.L. 82 | N.J. | 1833
Lead Opinion
I am of the opinion, that the Court of Common Pleas ought to have received the new appeal bond offered in this case. The only objection to it was, that the party appellant did not join in its execution. This would be giving the act too rigid a construction. I see no reason why we may not apply the same rule to appeal bonds, that we apply to certiorari bonds. The act is non imperative, but directory. A party against whom a judgment has been obtained, may be prevented by sickness or some other lawful cause from attending at the court to prosecute his appeal, and if no other bond than the one executed by himself, and which may turn out to be defective, will answer the requirement of the statute, he is virtually deprived of his right of appeal.
Concurrence Opinion
I concur in the opinion that a mandamus ought to issue. The second bond given in this case was a good bond. It was properly dated on the day it was executed. This court is in the practice of receiving certiorari bonds, though they are not executed by the plaintiff in certiorari, and I see no good reason, that the same practice should not be adopted by the Court of Common Pleas in regard to appeal bonds.
Mandamus ordered.