Murray v. Peckham

This action was begun in the Justice Court of Newport and taken by the plaintiffs, by appeal, to the Court of Common Pleas. The appeal bond was executed in the name of the appellants by their attorney of record. In the Court of Common Pleas the action was dismissed for want of a proper bond, and comes here, on exceptions, for error in the dismissal.

We do not find any error. In Clarke v. Courser, 29 N.H. 170, it was decided, that an attorney, under a general authority to prosecute and defend suits for his client, is not authorized to execute an appeal bond in the client's name, the law being that power to execute a sealed instrument must be under seal. In the case Ex parte Holbrook, 5 Cow. 35, the same view is taken.

The only ground on which the bond could be supported is general custom amounting to common error. We do not think, however, that the custom to give appeal bonds in this form has been so general and long-continued as to warrant a decision in support of the bond in question.

Exceptions overruled and case dismissed: no costs.