delivered the opinion of the Court:
This was an appeal from the judgment of a justice of the peace to the Circuit Court, and by that Court dismissed, because of the supposed insufficiency of the appeal bond. It appears by the bill of exceptions, that the bond was written by the clerk, and handed to the appellants to be signed by them and their sureties, which was accordingly done, (though not in the office,) and the bond lodged in the office with the clerk, upon which he issued a supersedeas to the justice.
This, we are of opinion, was a substantial compliance with the provision of the statute that requires the appeal bond to be entered into in the office of the clerk, and the security to be approved by him. Although the bond was not signed in the clerk’s office, it was lodged there, as the law requires, and must have been approved by the clerk; otherwise he had no authority to allow an appeal, and to issue a supersedeas enjoining the justice from proceeding in the cause. But if it is admitted that the bond was ever so defective, the Court nevertheless erred in dismissing the appeal; it ought to have allowed the motion of the appellants to file a good bond. The statute expressly provides for a case like this, by declaring that the appellant shall in nowise be prejudiced by reason of any informality or insufficiency of the appeal bond, provided he will, in a reasonable time, to be fixed by the Court, execute and file in the office of the clerk, a good and sufficient one. This provision is conclusive as to the right of the appellant to file a new bond, when the first is adjudged by the Court to be insufficient.
The decision of the Court below is therefore reversed with costs, and the cause remanded.
Judgment reversed.
Note. See Swafford v. The People, Ante 289; Crain v. Bailey, et al., Ante 321; Yunt v. Brown, Ante 264; Hubbard et al. v. Freer, Ante 467, and note.