Smith v. Boykin

61 Miss. 110 | Miss. | 1883

Campbell, C. J.,

delivered the opinion of the court.

Boykin had the right to appeal to the next term of the circuit court, and, on compliance with §2355 of the Code of 1880, to be discharged from the custody of the county contractor, but he had not entered into bond or recognizance and his discharge by the Chancellor was improper. The appeal-bond was'not executed by Boykin, and Anderson, the surety on whose signature the justice of the peace approved the bond, had caused his name to be erased before it became the bond of Boykin, and although he might have perfected his appeal at any time, and that would have entitled him to a discharge by Smith, it appears that he did not perfect his appeal. Before the case was tried by the Chancellor, Anderson’s name had been erased from, the bond and its execution by Boykin afterward could not impose obligation on Anderson as his surety. It was necessary for him to enter into bond or recognizance in the sum prescribed by the justice, “ with good and approved security,” conditioned as prescribed by law. If he had done that, his discharge from the custody of the county contractor would have been right. He may yet do that, and it will be the duty of the justice of the peace to approve his bond, if he offers “good security,” and to transmit his papers to the clerk of the circuit court. Judgment discharging pt'isonet- reversed.