Allen v. Johnson ( 1849 )

By the Court.

If it be necessary in appeals under the 299th section of the code of procedure, to give the security prescribed on appeals from judgments, it is quite apparent that it will be extremely inconvenient, and greatly embarrass the business of the court. The orders made by a justice at chambers, are often necessarily made without much discussion or time for deliberation, and we have been in the habit of reviewing them very freely before the whole court.

We have come to the conclusion, on examining the code, that it is not necessary to give security on such appeals. The section says these appeals may be taken “ in like manner''' as those from final judgments. This language has full effect, if we apply it to the appeal itself, as distinguished from giving the security. The section regulating appeals from judgments, (s 297,) plainly recognises this distinction. So the 275th section declares how appeals in general shall be made, and the giving of security is no part of the requisition. That is required in certain classes of appeals, by distinct sections.

We think there is no occasion for extending the giving of security to appeals from orders made by a single justice, and that a true interpretation of the code does not require it.