People ex rel. Titus v. Judges of the Court of Common Pleas

5 Cow. 34

Opinion

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.

Footnotes

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(a) The Court below erred; and the motion must be granted.

Rule for a peremptory mandamus.

Barnes v. Bulwer, (Carth. 121,) and Goodtitle v. Bennington, (Barn. 75,) S. P. upon the English statute, which requires the party to enter into recognizance, in order to stay execution upon writ of error brought.