QUINN et al v. ADAIR, 4 Ala. 315

GOLDTHWAITE, J. 1. It is contended by the plaintiff in error, that the condition of the bond is to receive the same .construction, whether the remedy on it is by suit or by a

summary judgment. In this we entirely concur, and our opinion is, that if the bond is so defective as not to warrant the judgment, it is immaterial whether the remedy is sought by suit or motion. 2. It is also insisted that the act authorizing appeals from the judgment of a Justice, and providing that the appellant shall give bond and security, does not contemplate the case of an appeal by the plaintiff.

The statute is in these words — any person aggrieved by the judgment of any Justice, may, within five days thereafter, appeal to the next superior Gourt, sitting for his county, first giving to such Justice bond with good security in double the amount of such judgment, conditioned to prosecute such appeal to effect; and in case he be cast therein to pay and satisfy the condemnation of the Court. [Dig. 260, §9.] This enactment is sufficiently broad to cover the case of a plaintiff, and the only reason of any force against the practice grows out of the fact that the judgment in most cases against the plaintiff is only for the costs, which are necessarily small in amount, and therefore the bond in its penalty will not in ordinary cases be sufficient to cover the costs in the Circuit Court.

We are not called on to determine the amount of security afforded by such a bond, and in our opinion it is as obligatory on the plaintiff as it is on the defendant to give bond and security in case of appeal. 3. The judgment is next opposed for the reason that all the condition has been fulfilled by the prosecution of the appeal to effect; and as it does not contain the further condition to pay and satisfy the condemnation of the Court, the judgment cannot be sustained. We think this objection is well taken. .

It is impossible to say that the condition of this bond is the same as that required by the statute — its only condition is that the plaintiff shall prosecute and sustain his appeal; this has been done, and he has been so far successful as to rid himself of the principal amount for which judgment was rendered; but independent of this, no judgment ought to have been rendered on the bond, for its want of conformity to the statute, which is the only matter which can warrant a

summary judgment on it. For this error the judgment of the Circuit Court, rendering judgment nunc pro tunc against the sureties in the bond is reversed.