#### Brown v. Matthews.

May, 1823.

Appeal Bond — When Objection to Regularity Should Be Made.‡ — An appeal Is taken from the comity court sitting in chancery, and a bond is given, which is In fact a certiorari, and not an appeal bond. No objection is made to the regularity of the bond in the court of chancery. An appeal is taken to the Court of Appeals. In that court, an obj ection is made, for the first time, to the bond. The objection comes too late; but if it had been made in the court of chancery, that court could only have dismissed the appeal nisi, or have laid the party under a rule to give a proper bond in a reasonable time.

This was an appeal from the chancery court of Greenbrier, which reversed a decree of the county court of Greenbrier sitting- in chancery.

A suit was brought in the county court, by Samuel Brown against John Matthews and others, which was decided in favor of the said Brown. On petition to the chancellor, an appeal was allowed on the usual terms of giving bond, &c. A bond was accordingly given; but it was in fact a certiorari bond, instead of an appeal bond. In the court of chancery, no notice whatever was taken of this error; but the chancellor entertained the appeal, and finally reversed the decree.

*An appeal was taken to this court by Brown.

Wickham, for the appellant,

contended, that there was no appeal from the county court to the court of chancery, as no appeal bond had been given, or if it were given, the bond was not good, being only executed by a surety. He said, that the court of appeals would look into the regularity of the steps in taking an appeal; and that this case was not like that of a court of original jurisdiction, where a party has a day given him to plead. He must take advantage of an error in this way, or in none.

‡

(.Appeal Bond — When Objection to Regularity Should Be Made. — In Virginia Fire, etc., Ins. Co. v. New York, etc., Mfg. Co., 95 Va. 516, 28 S. E. Rep. 888, the defendant in error, at the hearing- of the case, moved to dismiss the appeal upon the ground that the appeal bond was defective. Judge Riedy in delivering the opinion of the court, said: “If the defendant in error was not satisfied with the bond, or deemed the defect now pointed out a sufficient ground for the dismissal of the appeal, he should have taken the neces.sary steps, within the time that a new bond might have been given, or another appeal allowed (Code, § 3474), where he has had a reasonable time in which to do so, to require a proper bond to be given, and, in the event of a failure to give it, moved to dismiss the appeal. It is too late to wait, before making such motion, until a new bond cannot be given, or another appeal allowed. To dismiss the appeal at this late day. under these circumstances, would be grossly unjust. The defendant in error, after such delay, must be considered as having waived any objection to the defect in the bond. Following the course which has been heretofore pursued by this court in dealing with similar cases, the motion to dismiss must be overruled. Jackson v. Henderson, 3 Leigh 196; Pugh v. Jones. 6 Leigh 299; *Brown v. Matthews,*1 *Rand.*462; Johnston v. Syme. 3 Gall 522; Acker v. A. & F. R. Co., 84 Va. 648, 5 S. E.Rep. 688; and Orr v. Pennington. 93 Va. 268, 24 S. E. Rep. 928.”

Where an appeal bond is defective, the party may file a new one at any before the case is finally acted on, and the appeal should not be dismissed. Dun v. Hemphill, 7 Fed. Cas., p. 350, citing principal case.

In Pugh v. Jones, 6 Leigh 299, 304, a supersedeas was allowed by the court of appeals, without requiring a supersedeas bond, When one ought to have been required, and the cause was docketed without objection. A motion was made to dismiss the appeal on this ground six years from the time of awarding it. Tttokbh, P., said, pursuing the principles which seemed to have governed the court in the principal case, Jackson v. Henderson, 3 Leigh 196, and Johnston v. Syme, 3 Gall 523, he thought the supersedeas should not be dismissed.

See further, monographic *note*on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.

JUDGE BROOKE,

May 22. — delivered the opinion of the court:

The court is of *opinion,*that if the bond *182was such a bond as seemed to be supposed by the bar, the objections taken to it, would not avail. But the bond in the record, is a certiorari bond, and not an appeal bond. If objected to in the court of chancery, that court would not have finally dismissed the appeal. The taking an improper bond, being the mistake of its clerk, the most it could do, would be to dismiss it nisi, or to lay the party under a rule to give a proper bond in a reasonable time. In this court, the objection comes too late. The appellant Brown, who was the appellee in the court of chancery, having not only omitted to make the objection there, but by putting in a plea, admitted that the appeal was regularly before that court. On the merits, the court is of opinion to affirm the decree.'