9 R.I. 254 | R.I. | 1869
This is a motion to dismiss a bill of exceptions, so called, upon the ground that the bond required by the statute has not been filed in the court below. A bond has been filed, *256 but it is a bond executed not by the party excepting, or by his attorney of record, but by a stranger to the suit. It is claimed that such a bond is insufficient, and in support of this view, we have been referred to the case of Leach v. Drake, 16 Pick. 203. That was a motion to dismiss a probate appeal, because a bond to prosecute it to effect had not been "given and filed in the probate office by the appellant," as required by Statute of 1817, chapter 190, section 7, the bond being executed not by the appellant, but by persons who did not appear to be his attorneys, and who did not profess to bind him, but themselves. The court held that the bond was not in compliance with the statute, and dismissed the appeal. To the same point the cases of Ex-parteBrooks, 7 Cowen, 428, and Hardway v. Byles, 1 Sm. Marsh, 657, were also cited. In the case of Ex-parte Holbrook the court say: "The statute is express, that the party shall execute; and we have usually construed it with great strictness." The case from 1 Sm. Marsh we have not seen, it not being in our library, and not having been produced.
On the other hand, it is stated and not denied, that the bond was given during the absence of the excepting party in Europe, by an agent who had charge of his affairs; though it is not claimed that he was charged specially with any duty in regard to this suit, and the bond-book of the Court of Common Pleas for Newport county has been produced, which shows that it has been the practice for appeal bonds to be signed by the attorneys, and not always on the face of the bonds expressly as such; though it does not appear that the giving of such bonds by persons who are entire strangers to the suits in which they are given is supported by any practice. Several cases have also been cited which, it is claimed, support the view that the bond given is sufficient.
But the cases referred to in opposition to the motion proceed upon reasons with which we are not satisfied, and manifest, in our opinion, a dangerous laxity of construction. Our statutes contain other similar provisions, which, if similarly construed, would, in a greater or less degree, fail to fulfill their purpose. It is true, the English cases are of quite an early date, and may *257 possibly have had an influence in originating the practice of giving the bond of the attorney of record instead of the bond of the party. But we are not informed that the practice has ever extended, in our state, to a mere stranger to the suit, and we are not disposed to approve of such an extension. We therefore dismiss the proceeding, upon the ground on which its dismissal is moved.
Exceptions dismissed. *258
