Ex parte Hurlburt

Ex parte Hurlburt. Hurlburt having obtained judgment before a justice of Onondaga county against Welch and Whitmarsh, defendants, they appealed to the C. P.; -but in the appeal bond condition was absolute, that the defendants should pay the judgment, with interest and costs of the appeal, omit* ting the usual alternative provision; or surrender themselves in execution, &c. For this defect, Hurlburt moved the 0. P. to quash the appeal, which they refused, The appellee cannot object bond'is better the quires; as if it omit the usual clause providing for the surrender of the bodies of the appellants. A motion was now made for a mandamus commanding them to quash the appeal. D. Qott, for the motion, V. Birdseye, contra. [MAJORITY — Curia.] Curia. It does not lie with the appellee, to object that the bond is better than the statute gives him; though it do not exactly follow the statute. The provision for surrender is in favor of the appellant, which he may clearly waive. The statute says the penalty of the bond must be in double the amount of the judgment; but we have often held that it may be for more. Motion denied. Vid. Ex parte Eastabrooks, 5 Cowen, 27.