Cheshire v. Williams , 101 Ga. 814 ( 1897 )

Lumpkin, P. J.,

concurring specially. One who, from poverty, is able to do only one of two things, is necessarily, from the same cause, unable to do both of them. As the appellant in these cases had actually paid the costs, and then made affidavit that he could not, because of his poverty, give' the security required by law, it seems clear that he was, at the time of entering the appeal, unable to both pay the costs and give the requisite bond. Had it appeared from the affidavit that the costs had been paid, and it had then proceeded to state that the appellant was unable, from poverty, to also give the bond, there would, it seems, have been a substantial compliance with the law. Since, however, the affidavit as filed did not conform, either technically or substantially, to the terms of the statute, and no offer was made by the appellant to amend his affidavit, as it was his right to do under section 5124 of the Civil Code, I concur in the judgment above announced.