Ripley v. Merchatns' National Bank

At the opening of the court the next morning the opinion of the judges was given orally by the Chief Justice as follows: Park, C. J. The court hold the plea in abatement sufficient. We regard the statute as clearly requiring bond to be given, with surety, on the issuing of the writ of error. The •record states that “ bonds for prosecution were given, and George C. Ripley was recognized, &c.” This a majority of the judges take to mean that George C. Ripley alone gave bond. If the record had been simply “ bonds for prosecution given,” and no more, it would have been inferred that full and legal bond was given, and it would have been a sufficient memorandum of this, provided bond with surety had in fact been given. The question of fact is of course open. The case coming to this court by original process, of course the question of fact can be made here, whether bond was duly given, or whether service was in fact made, or any other issue of fact that could properly be made by a plea in abatement. The replication is both a demurrer and a traverse. Our present decision is on the demurrer. The plaintiff can of course go on with his traverse and show that the allegation of the plea that no bond with surety was given is not true; but we suppose, from what was said by both parties, that there was in fact no such bond given. Jt was stated that a bond had just been filed by the plaintiff with surety, but we are of opinion that such a bond would be of no avail. The bond must bo given at the time of the signing of the writ of error by the clerk, and if not given then the omission cannot be made good by giving a bond after the case gets into court. The person giving bond here was Mr. Ripley, the plaintiff. If some other person had given bond it might perhaps have been enough. We do not decide that point. There is a practice that would go to sustain the sufficiency of a bond so given. Foster, J., remarked that he did not concur in the decision, but did not state his views.