
    WATSON ET AL. v. MARPLE.
    Rule to show cause why a Mandamus should not issue.
    An appellant has a right to subititute a new and sufficient appeal bond, after one or more insufficient substitutes have been rejected by the eourt of Appeals, provided no delay is occasioned thereby.
    
      Jeffers in support of the rule.
    
      Browning, contra.
   The opinion of the Court, by

Rornblower, C. J.

The appeal bond which had been sent up by the justice, was objected to, as defective, and it was decided by the court, that it was so: the appellants then immediately executed, and tendered another: that was also objected to and ruled to be insufficient. A third and unobjectionable bond was then immediately executed and offered, but the court refused to receive it, on the ground that the appellants could not offer as a substitute for the original bond, a third or fourth bond; and dismissed the appeal. In this the court of Common Pleas were clearly wrong; they went contrary to the letter and spirit of the act. Elm. Dig. 291, sec. 4. Its language is, that “ the court of Common Pleas may permit the appellant to substitute a new appeal bond in the place of the bond filed and sent up by the justice, provided that no delay in the trial of the appeal, shall be occasioned thereby.” There is no pretence of any affectation of delay or want of good faith on the part of the appellants, and it was manifestly the design of the statute to prevent a failure of justice by reason of any error or mistake in preparing or executing the original appeal bond, where the appellant has it in his power to furnish a correct one, without delaying or putting off the trial of the appeal. An objection to the original bond having been sustained by the court, the party had a right to substitute for it, a “new” and sufficient bond : he offered one which he supposed to be correct; but the court held it to be otherwise, and would not receive it as a substitute. As yet then, there had been no substitution in the place of the original bond, and the party’s right to make one, remained unimpaired; but nevertheless, when they offered a new and sufficient bond, in the place of the one sent up by the justice, the court rejected it, because the bond first offered as a substitute, had not been received. In this the court erred; and the rule for a mandamus, must be made absolute.

Hule absolute.  