People ex rel. Titus v. Judges of the Court of Common Pleas
New York Supreme Court
On appeal from a justice’s court by S. and O. Titus, against Schermerhorn, the C. P. of Dutchess dismissed the appeal, on the ground that the appeal bond was executed by only one of the appellants, being signed and sealed by him thus; 11 Stephen & Obadiah Titus, (L. S.)” On the Judges’ showing this for cause, A motion was now made for a peremptory mandamus, commanding them to set aside their rule dismissing the appeal; and to proceed upon it.
1Opinion of the Court
Curia.
Clearly one of two men, though partners, cannot bind the other by specialty upon the footing of his general authority. But we think there is no necessity for the party to give the bond, provided the security is fully competent without him. The main object of the bond is, not to give the Court jurisdiction, though it is made incidentally necessary, for this purpose, by the statute; but to make the appellee secure in recovering his demand. This purpose is just as well answered without the party, as with him, provided competent sureties execute the bond.(a) The Court below erred; and the…
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