Hawkins v. Bell

The judgment of the court was pronounced by Rost, J. The plaintiff has moved to dismiss the appeal in this case, on the ground that no legal bond has been given; the appellant not having complied with the order of the judge, fixing the amount of said bond. It appears, that the order of the judge required the appellant to give bond in the sum of $1114 73; and that the appellant, without obtaining an order to reduce the amount required, gave bond for one hundred dollars only. [562] The rule undoubtedly is, that when the judge, in granting the appeal, has fixed the amount of the appeal bond, the appeal is granted upon the condition that the bond required shall be given. C. P. 574. Glaze v. Russell, 5 N. S. 237. Smith et al. v. Vanilhe, 10 L. R. 252. Rightor v. Phelps, 1 R. R. 324. Slatter v. Commercial Bank, 12 R. R. 187. In cases of suspensive appeals, it has sometimes happened, that the amount of security fixed by the judge was less than the amount required by law; and we have entertained those appeals as devolutive. We do not. consider this as affecting the principle of the decisions quoted. Poydras v. Patin et al., 5 L. R. 129. Parker v. Patten, 9 R. R. 167. Ralph v. Haggatt, 2d Ann. 462. Lewis v. Splane, 2d Ann. 754. If the bond given was nearly of the amount required in the order of the judge, and manifestly more than sufficient to satisfy the costs in both courts, we might, perhaps, be inclined to attribute the non-compliance with the order to an error of the clerk, and to relieve the appellant. But no such error can be predicated upon the facts of this case; and we are compelled to say, that the appellant was not authorized to disregard the order of the judge, and to give bond for less than one-tenth of the amount required by that order. It is therefore ordered, that the appeal in this case be dismissed, with costs.