Averil v. Dickerson

Holman, J. The statute requires the- bond to be given in the [4] clerk’s office of the Court from which the appeal is prayed. We are of opinion, that according to a fair construction of the act, the appeal bond must not only be filed in the clerk’s office, but-must be actually executed there, in the presence of the clerk, or of one of his deputies. In thus deciding, we are supported by a decision of the Court of Appeals in Kentucky, in the construction of a similar statute. Hardin v. Owings, 1 Bibb, 214. Kidder, for the appellant. Lane, for the appellee. In this case, the appellant, upon whom the burthen of proof lies, has produced no evidence of the execution of the bond in the clerk’s office of the Circuit Court, in conformity to the provisions of the act of assembly, and the case must therefore be dismissed (1). Per Curiam. This suit is dismissed, with costs. Footnotes [(1)] Ind. Stat. 1816, p. 7. — Acc. Ind. Stat. 1823, p. 131.