Curia, per
Woodworth, J.The statute requires that the bond be in double the amount of the judgment; if costs only are adjudged against a party, it follows that it must be in double the amount of the costs; if damages and costs, then double the amount of both. In the Matter of David Marsh, (19 John. 171,) it is true, this Court held, that the costs were not to be considered a part of the judgment. But that was for the purpose of the right to appeal, the. statute of 1818 giving an appeal only when the damages recovered were over 25 dollars; consequently, if it required the addition of the costs to make out a sum exceeding 25 dollars, an appeal would not lie. But under the act of 1824, an appeal is given in every case ; and when the amount of the judgment is spoken of, it has reference to the costs as well as the damages.
*64• The first part of the section regulating appeals declares; that the party appealing shall give a bond with a condition, to prosecute the appeal, with due. diligence, to a decision in the Court of Common Pleas ; and in case judgment shall be rendered against the appellant, to pay such judgment, including costs of the appeal. This applies to cases, 1. Where the plaintiff may recover before the Justice ; but being dissatisfied with the amount recovered, appeals ; 2. Where a defendant has judgment in his favor for costs only, and appeals because a balance is not found in his favor, or where a balance is found in his favor and he claims a greater : and 3. Where, the plaintiff appeals, when the judgment is in favor of the defendant for costs merely. In all these cases, the condition of the bond has nothing to do with the costs, damages, or debt, recovered in the Court below ; because, as to the costs, they are paid before the party can appeal, and as to the damages in favor of the appellant, he seeks to get rid of them by the appeal. But when the party against whom damages are foupd appeals, then the condition is to pay the debt or damages, with interest and costs of appeal, if the appeal shall not be prosecuted with diligence, or that the appellant shall surrender his body in execution on the judgment. The sentence is obscure; but the meaning is, if the suit is not prosecuted with due diligence, the appellant shall pay, or surrender his body; and in case judgment shall be rendered against the appellant, he shall pay or surrender in like manner. This construction is necessary in order to make the latter clause consistent with the former, to effectuate the intent of the legislature, and to avoid an absurdity which would arise from adhering to a literal construction; which" would be, that if the appellant prosecuted with diligence, he would not be obliged, by the bond, to pay or surrender, although he might fail in the appeal. The words, “ or in case judgment shall be rendered against the appellant,” in the condition of the bond, applicable to the firgt class of cases, are necessarily to be understood in the second, after the words, “ if such appeal shall not be prosecuted with all due diligence.”
*65In the present case, judgment was in favor of the defendant for costs; and, consequently, as the bond is in the form prescribed by the first part of the section, it complies with the act; and the Court below erred in quashing the appeal.
Motion granted.