No. 109.
[1.] If the surety on appeal becomes insolvent pending the appeal, the appellant has the right to save the appeal, by filing an affidavit that he was advised and believed that ho had good cause of appeal; and that owing • to his poverty lie was unable to give any better security than that which ' he did give.
Assumpsit, in Heard Superior Court. Tried before Judge Bull, Not ember Term, 1855.
This was an action of assum psifc on an open account, brought by Oery & Stanford against James A. Sample as surviving .co-partner, &c. At the April Term, 1352, the defendant *574confessed a judgment for $222 20, reserving tbe right of appeal. And at the same term he entered an appeal, giving Noah M. Harris as his security on the appeal bond.
At the November Term, 1855, of said Court, the cause came on to be tried on the appeal, when Counsel for plaintiffs moved to dismiss the appeal, on the ground, that pending the appeal, the security had become insolvent. This fact was admitted by the defendant, wrho then and there, being unable to give other security, moved the Court to bo allowed to continue the appeal, by filing his affidavit in terms of -the law, ‘‘that he was advised and believed that he had a good cause of appeal; and that owing to his poverty, he was unable to give other good security as required by law;” which motion the Court over-ruled, and dismissed the appeal; and Counsel for defendant excepted.
Mabry, for plaintiff in error.
Hill, for defendants.
By the Court.
delivering the opinion.
[1.] The question is, was it the right of the appellant to save his appeal by filing such an affidavit as that which he proposed to file.
We think it was. We have so decided in two cases— Burkhalter vs. Bullock, (18 Ga. 371,). and another since, the name of which I forget.
We, therefore, reverse the decision of the Court below.
19 Ga. 573
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