Dawson against Ryan; Stiles against The Westchester Railroad Company, 4 Watts & Serg. 403

The opinion of the Court was delivered by Rogers, J. — In Dawson v. Ryan, the motion was to dismiss the case, because the appellant neglected to enter bail as required by the Act of the 26th July 1842,

an Act relating to the Nisi Prius court, and in Stiles v. The Westchester Rail-road Company, because the record, &c. was not certified in time. The 6th

section on which the questions arise, is in these words: “ And it shall be lawful for either party to take a bill of exceptions to any opinion or charge of the judge as is now practised and allowed in the Courts of Common Pleas of the State; and whenever the said judge shall refuse to grant a-new trial on points of law, or whenever either party shall tender a bill of exception, &c., or in any cases in said court, where a writ of error is now allowed in a like case, to any Court of Common Pleas or District Court, it shall be lawful for the party aggrieved to require the said judge to grant an order to certify the record and bill of exceptions, or either, as the case may be, to the judges of the Supreme Court in bank for a hearing at the next term thereof; upon such party, his agent or attorney, making an affidavit that the order is not sought by him for the purpose of delay, and upon giving absolute security with two sureties by recognizance, for the payment of all damages and costs in case the proceedings shall be affirmed in the manner now prescribed and allowed in cases of writs of error to the Courts of Common Pleas of this State: Provided, that such order shall not be a supersedeas to an execution, unless taken and perfected within 21 days after judgment shall be rendered before said judge.” The Act makes several material alterations in the mode of proceeding at Nisi Prius.

It is now a court of Nisi Prius in name only, resembling in some particulars the former Circuit Courts, and especially in the power which is conferred for the first time upon the court by the 8th section, to enter judgment. It is a distinct and independent court, not the less so because it is held by one of the judges of the Supreme Court. The appeal is from the judgment of the court under certain terms and conditions prescribed in the Act.

The first question which arises is, when is the appeal to be taken 1 And we are of the opinion that to entitle a party to a review, he must take a bill of exceptions, and in other respects have his cause prepared for a hearing, at the next term of the Supreme Court after judgment rendered. The record and bill of exceptions must be certified by the judge’s order to the judges of the Supreme Court in bank for a hearing at the next term; that is, at the term next succeeding the rendition of, the judgment.

If we construe the words at the next term to mean, what perhaps is their natural import, on or before the first day of the term, it may in a chance case require some diligence to perfect the record; but still it is plain that nothing is demanded either impossible or even difficult to perform. But what steps must be taken by the appellant to perfect his appeal ? To this we answer, two things are indispensable: 1.

That “ the party or his attorney make an affidavit that the order is not intended for delay; and, secondly, he must give absolute security, (that is, security for the money), for the payment of all damages and costs in case the judgment of the court is affirmed.” We say, that both are indispensable conditions of the appeal; for if we can disregard one, there is nothing to prevent our disregarding the other, which is not pretended. They are placed in the same category, coupled together by the copulative conjunction, and both or neither are conditions of the order.

It is needless to cite authorities to prove that the word upon, as used in the sentence, implies a condition precedent. It is its natural sense, which we are not permitted to disregard. It is useless to speculate upon the reasons which influenced the legislature, although it would not be difficult to suggest some, arising from a desire to throw some impediments in the way of an appeal by a limitation of time, and requiring those things to be done which are not difficult, and which will rarely be omitted when a rational hope is entertained of a reversal. But the security to be entered is for damages and costs.

This, it must be observed, is an action of replevin, and consequently the appellant could conform to the Act in its letter as well as spirit. The Act is carelessly drawn, for it does not in terms include a judgment for a debt. But as we are bound to carry out the intention of the legislature, I should esteem him a very bold man who would designedly omit to give security even in such a case where he really desired his case reviewed. For I cannot believe that the legislature intended so marked a distinction between a judgment in debt or assumpsit, or between a judgment for the plaintiff or defendant.

It will therefore become a prudent practitioner to conform to the substance as well as the letter of the Act, and perhaps it is well that this case has arisen at this early day, as it may prevent some from falling into so perilous an error. But the damages and costs are to be paid in case the proceedings shall be affirmed in the manner now practised and allowed in cases of writs of error to the Courts of Common Pleas. From this, an inference has been drawn that, like a writ of error, the appellant may, at any time within seven years, appeal from the judgment.

But this is at war with the preceding part of the section, which prescribes the time of taking the appeal. It refers merely to the manner of affirmance, which is to be as on a writ of error. It neither adds to, varies, or qualifies the other parts of the section. But it is provided, that the order shall not be a supersedeas to an execution unless taken and perfected within 21 days after judgment shall be rendered, &c. It is very obvious that the time to which the party must look is the time the judgment is rendered.

If he desires his case to be reheard, he must perfect his order by the next succeeding term, and if he further wishes the order to be a supersedeas, it must be done within 21 days after the judgment.

As for example: when more than 21 days intervene between the rendition of the judgment and the next term of the Supreme Court, the appellant, although entitled to an appeal when the order is in due form certified by the judge after the 21 days have expired, cannot have the benefit of a supersedeas unless the order is taken and perfected by the affidavit of the party and entering security before the expiration of that time. This construction gives force and effect to every word of the section.

While a chance of a rehearing is given, it imposes certain salutary conditions and restrictions as a prerequisite to the appeal. We have less reluctance in giving the Act this construction, as if any inconvenience may be supposed likely to arise from it, it may be remedied by the legislature now in session. But although, as we have before remarked, the appeal must be taken and perfected in time for a hearing at the next term after judgment, yet we are of opinion that in the case of Stiles v. The Westchester Rail-road Company the appeal is’in time.

Judgment was rendered on the 26th of November, and the affidavit, record, &c., were filed before 10 o’clock on the 12th of December following the first day of the next term. In Vanlear v. Vanlear, (1 Binn. 76), it is ruled, that the record of the proceedings upon an appeal from the Circuit Court, which by law is directed to be filed b'efore the next term, is in time if it is filed before the court meets on the first day of the next term.

This is rather a stronger case than the present, for it is directed to be filed before the next term, whereas here it must be preferred for hearing at the next term, which by no forced construction may be made to include the first day of the next term. The words of the Act aré so general, that perhaps all inconveniences which may arise may be avoided by a rule of court, giving further time if necessary. It is argued that the latter case must be dismissed for another reason; that is, that the errors were not assigned in time.

But this objection is met by the offer to assign errors before the final disposition of the motion. Dawson v. Ryan, dismissed. Stiles v. Westchester Rail-road Company, motion overruled.