Fannon

The notice of appeal in this ease was filed and a copy thereof duly served on the 3d of May, 1864. On the same day an undertaking on appeal was also filed, and on the 7th of the same month respondent’s attorneys served on appellant’s attorney notice that they excepted to the sufficiency of the sureties who executed the undertaking. On the day last mentioned the appellant’s attorney filed in the cause a notice that the sureties would appear on the 9th of May at the office of the clerk of the court to justify as sureties. Accompanying this notice was a statement by appellant’s attorney that a copy of it had been left with the respondent’s attorneys on the day of the date of the notice. The sureties appeared before the clerk on the 9th and justified, but no one appeared there on the part of the respondent. The counsel for the respondent upon notice has moved for the dismissal of the appeal on the ground that no notice was given of the justification of the sureties, to whose sufficiency the respondent excepted.

The three hundred and forty-eighth section of the Practice Act provides that an undertaking with sureties shall be filed or deposit of money made in order to render an appeal…