Unknown County MsArchives Court.....Rogers, Mr 1839
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Deb Haines ddhaines@gmail.com December 8, 2005, 9:10 pm

Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Rogers v. Gallaway.

pages 58-59

The writ of error bond must contain a condition for the performance of the 
sentence, judgment, or decree, which the High Court of Errors and Appeals may 
render in the case, or the cause will be dismissed on motion.

PERKINS moved to dismiss the cause for want of a sufficient bond. The grounds 
of the motion are sufficiently stated in the opinion of the court.

Mr. Justice PRAY delivered the opinion of the court.

This cause is submitted on a motion to dismiss; because, 

No such bond, as the law requires, has been filed in the office of the clerk 
below, upon which to predicate the writ of error.

The condition of the bond required by the statute is: "That the plaintiff in 
error shall prosecute his writ to effect, and for the judgment or decree, 
damages, interest and costs, in case such judgment or decree shall be 
affirmed, and, also, for the performing of the sentence, judgment, or decree, 
which the High Court of Errors and Appeals may render therein."

The condition of the bond filed in this case is: "That if the said M. T. 
Rogers shall prosecute to effect his said writ of error, or failing therein, 
shall well and truly pay, and satisfy the judgment of said court, together 
with all damages, interest and costs, as the High Court of Errors and Appeals 
shall award in the premises, then the above obligation to be void, else to 
remain in full force and virtue in the law."

This condition we deem clearly insufficient. Suppose in the present case, the 
judgment below should be reversed for a miscalculation of the clerk, by which 
it became excessive in amount. This court would correct the miscalculation, 
and enter such a judgment here, as ought to have been entered below. In such a 
case, the condition of this bond presens no security for its payment. It only 
provides for the payment of the damages, interest and costs, which this court 
may award.

The word damages in this condition can refer to nothing but the ten per cent. 
damages which this court has the power of imposing.

For this defect in the condition of the bond, the cause must be dismissed with 
costs and damages.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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