
    
      PLEASANTS vs. BOTTS & AL.
    
    Appeal from the court of the fifth district.
    An appeal will not be dismissed because the appeal bond is given to B & A, instead of A & B.
   Porter, J.

delivered the opinion of the court. The plaintiff as surviving partner of the house of Pleasants and Charmly, sued Charles Caldwell and John Botts, who, he averred, were merchants trading under the firm of Caldwell and Botts; judgment was given against him in the inferior court, and he appealed.

West’n Dis'ct

October, 1826.

A motion has been made in this court, to dismiss the appeal, because the bond is made payable to Botts & Caldwell, instead of Caldwell & Botts.

We do not think it should prevail. The bond is required by law, to secure the appellee from the damages he may sustain by the appellant bringing the cause here. The enquiry therefore in all cases like this must be, if the defendants in the suit should hereafter bring an action on the bond, could they recover? And the answer in the case certainly would be in the affirmative. The mistake was merely clerical, and on shewing that the bond was filed in the suit from which the appeal was taken, the obligors could not have successfully alleged, that it was not payable to the defendants.

The suit was brought on the record of a judgment rendered in a sister state, and the judge, being of opinion that it was not proved in the manner directed by the act of congress, nonsuited the plaintiff.

Oakley for the plaintiff, Boyce for the defendant,

On examining the transcript, and the certificates which accompany it, we think the court below erred. The clerk states, that it is a true and complete transcript, and the judge certifies that this clerk was at that time the clerk of the court, and that the certificate is in due form. This was sufficient, and the cause must be remanded.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed, that this case be remanded to the district court, with directions to the judge, not to reject the transcript which accompanies the record in this case, on the ground that it has not been certified by law, and it is further ordered, adjudged and decreed, that the appellee pay the costs of this appeal.  