Willett v. Stringer

6 Duer 686

Opinion

When, upon an appeal, an undertaking has been given, fully complying with the statute, and the appeal is perfected, the appellant does not remain responsible for the consequences of the misfortune and insolvency of his sureties.

But there is a substantial distinction between the case of an injunction and that of an appeal. In the case of an injunction, if the protection, by the security substituted for an injunction, should become entirely lost, as by the insolvency of all the obligors, the right to the injunction would be restored; and if it is partially diminished, the question remains open, as it was originally, what will afford the party reasonable indemnity.

It is a question of judicial discretion, whether to allow a bond given on a claim of personal property, or for an injunction, to remain, where one surety has become insolvent and the remaining surety solvent, or direct that fresh surety be given. (Eeported in 15 How. Pr. E. 310.)