1 Wend. 19 | N.Y. Sup. Ct. | 1828
By the Court,
The common pleas erred in quashing the appeal. In 7 Cowen, 428, Ex parte Brooks, this court say the bond must be executed by the parly, as the statute expressly requires it. Elisha Fitch is the party here, within the meaning of the statute. He was bound to indemnify the sheriff; and having received notice of the suit, the judgment was conclusive against him. (6 Johns. R. 158, Kip v. Brigham and others.) As surety to the sheriff he had a perfect right to remove the cause by appeal to the common pleas, and to use the name of the sheriff for that purpose. (Lyon v. Tallmadge and others, in Error, 14 Johns. R. 501.) The sheriff was not bound to remove the cause to the common pleas, on the requisition of the surety. Unless, therefore, the surety was permitted to prosecute the appeal, he would be remediless. The motion for a mandamus is granted.
