Chisum's Lessee v. Wooten

Counsel

WHITESIDE, for the defendant, who appealed, moved upon this certificate of the clerk, and affidavits, that he might be permitted to give security in this court. He argued that the record, so far as was necessary for a trial, was complete; that the bond and security were intended for the security of the opposite party, and if that bond and security were given now the views of the legislature would be answered. 1 Rich. Pr. 325; Barnes, 108, furnishes similar cases respecting bail. The bail piece was lost, and new bail substituted. In North Carolina, it appears from 1 Hay. 337, 400, that securities upon appeals may be released and others substituted. A similar instance took place at Nashville respecting security for costs; it follows, as a logical inference, that if the security taken in the County Court can be released, as in the cases in Haywood, this court can take the security now offered. WHITE, e contra. — Beside the want of a bond, there are no reasons for the appeal sent up, — either is sufficient to dismiss, agreeably to the uniform practice in the courts. The cases in 1 Richardson do not apply; the security there contemplated was in the same court, and the question was whether the security was sufficient, as the party to the suit had not signed the bond; all this is admitted, but the question there was not whether one court can do a thing which is expressly required by statute to be done by another, which is the case before the Court. The power of taking bond, and reasons, is given to the County Court, which ipso facto, excludes the exercise of such a power by this court. The cases in Haywood do not supply an act which should be done by the County Court, — this is the object of the present motion. Unless the Act of Assembly is substantially complied with there is no record here upon which the Court can act. See Court Law, §§ 63, 64. WHITESIDE, in reply. — It is not wished to supply what the County Court ought to have done. After satisfying this court that security had been given, and reasons filed below agreeably to law, and that those reasons have been lost, we wish the Court to take security which will prevent injury from the loss of those papers. The filing of reasons here would be useless, — the Court can proceed without them. It has been frequently decided, that, after a county court grants an appeal, no proceedings can take place in that court afterwards. In a ease at Knoxville, a plea was permitted to be added in a case which came before the Court by appeal, and in another a judgment by default in appeal was set aside, and the defendant permitted to plead. In Haywood, 400 it was determined that one security, if able, was sufficient, though the Act of Assembly required two, and as the object of the law was to secure the opposite party, the design of the legislature will be completely answered.