dissenting. I am constrained to dissent hi this case from the opinion of a majority of the court.
The simple question arising upon the facts presented is, whether a recovery can be had upon an appeal bond, taken without any authority of law, and under wMch the party giv-mg it can acquire no legal rights ?
I think the weight of authority, as well as every sound principle of reasoning, is clearly against the right of recovery in such a case.
The following is the provision of the statute in relation to appeals from justices’ courts :
“ No appeal shall he allowed in any case, unless the following requisites are complied with within ten days after judgment rendered, viz.: “ 1. An affidavit shall be filed with the justice before whom the cause was tried, stating that the appeal was made in good faith, and not for the purpose of delay. 2. A recognizance entered into by the party appealing, his agent *435or attorney, to the adverse party, in a sum sufficient to secure such judgment and costs of appeal, must be entered into, with one or more sureties, to be approved by the justice.”
It is manifest, from this provision of the statute, that, no matter how erroneous the judgment, how perfect the form of the recognizance, or how ample the sureties; unless the affidavit is made and filed, as required by law, the party aggrieved by the judgment can have no appeal.
The record in this case shows that no affidavit was filed with the justice. It also appears from the record that, notwithstanding no affidavit was filed, the justice, in violation of the statute, received the recognizance of the appellant, and allowed an appeal. ,
When the case was brought before the circuit court, it was dismissed for want of jurisdiction, thb court- deciding that the appeal, having been allowed by the justice in'violation of law, was improperly in the circuit court, and that that court had not acquired, and could not entertain jurisdiction of the appeal. I think that the cause was not properly in the circuit court for any purpose. But it is insisted that although the appeal was illegally allowed, yet that the recognizance was valid. It has been repeatedly held, both in civil and in criminal cases, that recognizances taken without authority of law, and not in compliance with the statutory provisions under which alone they were authorized, are void. People v. Koeber, 7 Hill, 39; Bridge v. Ford, 4 Mass. 641; Vose v. Deane, 7 Mass. 280; Harrington v. Brown, 7 Pick. 232; Green v. Haskell, 11 Shep. 180; People v. Brown, 23 Wend. 47; Seymour v. Judd, 2 Comst. 466.
I doubt whether an adjudicated case can be found where a recognizance taken in violation of law, and under which the party who gave it received no benefits and acquired no legal rights, has been enforced.
If, in this case, no motion had been made in the circuit court by the appellee to dismiss for want of jurisdiction; if the case *436had there proceeded to final hearing upon the merits, without objection, and the appellant had had the benefit of his appeal, he might then, perhaps, have been estopped from interposing as a defense to the recognizance that,it was taken by the justice without authority. Van Deuzen v. Hayward, 17 Wend. 69. According to the decision, however, in the ( case of Latham v. Edgertan, 9 Cow. 227, the appellant would not even then have been estopped from denying the validity of the recognizance.
It is contended that the recognizance ought to be held valid, because the appellee, by reason of its having been received and accepted by the justice, was hindered and delayed in the col-, lection of Iris judgment. If this be true, whose fault was it ? Was it that of the appellant who executed the recognizance, or that of the justice who improperly received it ? If the fault of the latter, then, surely the appellant ought not tosuifer.
But I think it did not necessarily follow that the appellee was either hindered or delayed in the collection of his judgment. According to the decisions, both in New York and in Massachusetts, in analogous cases, the judgment rendered by the justice remained in full force, and was neither vacated nor suspended by the improper allowance of the appeal. The appeal was a mere nullity. Ex parte Chrysler, 4 Cow. 80; Latham v. Edgerton, 9 id. 227; Seymour v. Judd, 2 Comst. 466; Campbell v. Howard, 5 Mass. 377; Ladow v. Groom, 1 Denio, 429. It appears to be well settled that jurisdiction of the cause does not, of itself, give the justice jurisdiction of the appeal, hi a case where a justice of the peace has jurisdiction over the parties and of the subject matter, and is, therefore, authorized to render judgment, yet, unless the provisions of the statute providing for an appeal be complied with, the justice has no jurisdiction of the appeal.
The case of ex parte Chrysler, 4 Cow. 82, was one of this character. In that case the court say: “It seems to be the intention of the legislature that the party shall not be heard on appeal unless he comply strictly with the terms of the act. *437The court below acquired no jurisdiction of the appeal. There is no cause concerning which he can interfere.” The court also, in the opinion given, further declare that the appeal “had no force or effect whatever.”
These positions are strengthened by numerous decisions in the courts of the different states, in cases in some respects of a similar character.
In a late case in'Pennsylvania (The Commonwealth of Pennsylvania for the use of Erie County v. Buel Phillips) it was held that, as a justice of the peace in Pennsylvania had no power to admit to bail one charged with the crime of arson, a recognizance taken by him for the appearance of the defendant to answer such charge is comm non judice and wholly null and void.
Upon the same ground, in the case of the People v. Koeber, 7 Hill, 39, the recognizance was held invalid, the justice having no authority by law to take a recognizance in such a case. So in Olds v. The State, 6 Blackf. 91, a bond taken by a justice of the peace from a constable, whom he appointed without any legal authority, was adjudged void.
The People v. Brown, 23 Wend. 47, was an action of debt upon a recognizance for good behavior entered into by a defendant, as a disorderly person, pursuant to the revised statutes of New York. The defendant having been convicted of the offense and committed, could only obtain his discharge, under the statute, by appearing before two justices and giving the required sureties. No exception appears to have be$n taken to the form of the recognizance. It was held invalid upon the sole ground that, as the statute required the intervention of two magistrates, the justice had no power singly to take the recognizance.”
CowEsr, J., in deciding the cause, declares the recognizance “utterly void on common-law principles of construction, but especially within the strong and broad language of the 2 R. S. 214, § 60, 2d ed., as not being taken by the officer in a case or in the manner provided by law.”
*438Iu a case recently deckled in tbe supreme court of New York (Cadwell v. Colgate et al.), where an attachment was issued against a non-resident debtor on affidavits which were insufficient to confer jurisdiction upon the officer issuing it, and after a levy made by the sheriff on the property of the debtor, the latter procured its release by executing and delivering a bond with sureties, reciting the issuing of the attachment, and conditioned, as required by statute, for the payment of the debt, with interest, costs, etc., the bond was adjudged to be void.
In view of the facts in the case at bar, of the provisions of our statute in relation to appeals from- justices of the peace, and of the authorities which I have cited, I am of the opinion that the plaintiff below ought not to recover, and that the judgment of the circuit court, instead of being reversed, should be affirmed by this court.