Webb v. Hopkinson , 10 Vt. 544 ( 1838 )

Collamer, I.

The statute of 1835, giving jurisdiction to justices of the peace of actions of this nature, gives to each party the right of appeal and puts that appeal under the same regulations as in other cases. Our statute gives to the party, entitled to appeal from the judgment of a justice, two hours within which to enter his appeal, and requires him to furnish bail by way of recognizance to prosecute i t. That entering bail is a part of the taking of an appeal so as to vacate the judgment, and without which bail the appeal is imperfect and incomplete, was fully, and we think correctly, decided by this Court in this county in 1833, in the case of Beach v. Ingalls. The necessity of this arises not only from the phraseology of the statute, which strongly implies it, but from the utter impracticability of a different course. A plaintiff must take out and pursue his execution within a certain time after judgment to hold his previous securities.

If an appeal can be taken and bail therefor be indefinitely suspended and at last, perhaps, utterly neglected, the plaintiff’s securities will be lost. It is frequently the case that both parties are dissatisfied with the judgment, and one neglects to appeal because he sees the other appeal. If the bail may be deferred, it may be wholly neglected, and the other party entirely deceived. If an appeal can be entered and the bail deferred, when can the justice issue execution ? How long may it be deferred ? In short, it is impracticable to leave the appeal suspended on the doubtful contingency of bail being after-wards perfected or neglected by the appellant; or to fix on any other time but the two hours fixed by law for entering the appeal, or to permit appeals without bail. We cannot adopt the notion of the plaintiff’s counsel, that is, that the justice may allow an appeal without bail, and stand himself responsible. The appeal is a matter of right, which the justice has no judicial discretion to allow or refuse; and so with the County Court; and they cannot deny to the appellee the security the law gives him, — -that is, good bail. It is not Jaw that where there is no such bail the justice or the judges are personally liable. The law gives the party his right to appeal only on the condition precedent that he furnish bail.

Judgment affirmed.