Willis v. Bryant

G-oidsboRoush, J., after stating case {ante pp. 374, 375,) delivered the opinion of the Court as follows: The first question presented for our consideration, is a motion made by the appellee to dismiss this appeal, upon the ground that though the appeal was taken within the time prescribed by the 6th section of Article 5 of the Code, yet the bond to prosecute the appeal, was not given within thirty days; and that the giving of the bond was a condition precedent, and it should have been given when the appeal was taken. In considering this motion, we shall advert to the Act of 1849, ch. 88. That Act first gave the right of appeal in insolvent cases, and it required the appeal to be entered within thirty days, and a certified copy of the record in the cause to be transmitted to the Appellate Court, within sixty days from the date of the judgment, and that the judgment, decree or order appealed from, should not be “suspended or stayed, unless bond be given in such penalty,” &c. By the 6th section of the 12th Article, and the 20th section of the 48th Article of the Code, it is provided, that “any person interested may appeal from the decision of the Court on any question arising under the Insolvent law: provided such appeal be taken in thirty days, and bond be given to the State to prosecute with effect, or pay costs and damages.” According to the grammatical construction of these sections, which are identical, the limitation is confined to the time of taking the appeal, and the bond required, may be given after the thirty days, and the giving the bond is a condition precedent only to the prosecution of the appeal. ³⁷⁹ We are, therefore, of opinion, that the appeal in this case was properly before this Court, and. the motion to dismiss the same, must be overruled.

We shall proceed to consider the case upon its merits, and in doing so, we deem it important to determine how far the rights of the appellant are affected by his having those rights adjudicated in an Insolvent Court. While under the 10th section of Article 48 of the Code, the estates of insolvents shall be distributed under the order of the Court, according to the principles of Equity;” yet when we find by the 4th section of the same