Hardaway v. Biles , 9 Miss. 657 ( 1844 )

Mr. Justice Clayton

delivered the opinion of the court.

There is a motion in these cases to dismiss them from the docket, because the appellants have not given bond with surety in pursuance of the statute. The bonds which accompany the records are given by third persons, but are not executed by the appellants. The statute allows an appeal, “ upon the appellants giving bond with good and sufficient security,” to be approved by the court.

The giving bond with surety has been regarded in the light of a condition precedent, without a compliance with which the appellate court could not take jurisdiction. In Porter v. Grisham, 3 How% 76, the court says, “ causes can be brought into this court by appeal or writ of error, but to give the court jurisdiction, the requisitions of the law, in relation to obtaining such appeal or writ, must have been strictly complied with.” The subsequent practice has conformed tó the rule here laid down, so far as we have any knowledge of it.

The bond given by a third person is not the bond of the appellants ; and for want of a compliance wi.th the statute in this respect the motion will be sustained..

A subsequent statute, How. & Hutch. 540, passed in 1830, has made the writ of error a writ of right, and has annexed iio conditions to its emanation. The rule here laid down has, of consequence, no application to cases brought up by writ of error.