
    
      Minutes of Superior Court, letter G. p. 217.
    
      Chambers, June 3, 1809.
    Cook vs. King.
    APPEAL.
   By Charlton, Judge.

The question for the decision of the court in this ca6e is, whether it is required by the law, that a plaintiff upon entering this appeal, should give the same security which is required upon the appeal of a defendant. One of the provisory clauses of the 26th sect, of the judicial act, Marb. and Crawf. Dig. p. 300, declares, “ that in case either party shall be dissatisfied with the verdict, he may enter an appeal” within a certain time after the adjournment of the court; “provided, (says another clause in the same section,) 'the person or persons so appealing, shall previously, to obtain such appeal, pay all the costs which may have arisen on the former trial; and give security for the eventual condemnation money : except executors and administrators, who shall not be liable to give such security.” No distinction is made in the clauses between the security which it would be necessary for the plaintiff to give ; or that which is required of the defendant. It appears, however, evidently unreasonable and absurd, to require security of the plaintiff for the eventual condemnation money ; now the condemnation money is the sum sued for. The legislature would therefore not have intended that the plaintiff should, upon his appeal, give security to the amount for which he had sued the defendant. This being the absurdity which would result from a rigid adherence to the letter of the act, I feel myself authorized to put such construction upon the statute, which the makers had in view, for qui heeret in litera hceret in cortice. Williams vs. Barclay, 2 T. R. 73. The makers of the act had certainly no other object in view than to afford an ample security and indemnification to the plaintiff for the delay or vexation of defendant's appeal. There can be no condemnation money received from the plaintiff, hence the legislature could not have contemplated Any injuries to the defendant from his appeal, and as the plaintiff must pay all costs antecedent to the entering of an appeal, nothing can be recovered by the defendant upon the appeal recognisance, and consequently security by the plaintiff is nugatory, and if nugatory, the law did not intend to require it. I shall, therefore, substitute the intention of the statute foil the letter of it, upon the well known principle of construction, that a thing which is within the letter of a statute, is cot within the statute, unless it be with the intention of the makers. Reniger vs. Taggosd, in Plowden, 18, shows how far this principle was carried into operation in the construction of the statute of Marlebridge, c. 4.

Lawson, for plaintiff.

Davis and Berrien, for defendants,

I am of the opinion, therefore, that there is no irregularity in the neglect or refusal of the plaintiff to give security for the ultimate condemnation money.

Let the appeal be entered.  