Henderson v. Benson
| Decision Date | 26 February 1886 |
| Citation | 5 N.E. 314,141 Mass. 218 |
| Parties | HENDERSON v. BENSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
COUNSEL A Cottrell, for Edwin P. Henderson.
Lynde & Harding, for Michael Benson.
When a party wishes to appeal from the judgment of a district court compliance with the statutory requirement of a bond with surety (St.1882, c. 95; Pub.St. c. 154, §§ 52, 39, and chapter 155, § 29) has been held to be essential to the allowance of the appeal, and the consequent jurisdiction of the superior court. A bond without a surety is not such a compliance, and adds nothing to the liability which the appellant is under when the judgment appealed from is affirmed on complaint. Pub.St. c. 155, § 34. If the consent of the adverse party could dispense with the surety, it might also dispense with the bond itself. Whatever question there may be in respect to the waiver of formal defects or errors in the bond, the statutory requirement Sawin's about the furniture, and received money from her at different times, but could not remember how much; that he rolled the money up, put it in his pocket, and gave it to the book-keeper or placed it in the money drawer when he returned to the store. The remaining facts material to the case appear in the opinion.
W.N. Davenport and S.J. Elder, for defendant.
E.J. Sherman, Atty. Gen., for the Commonwealth.
The defendant testified that all the money which Mrs. Sawin paid him he put into the money drawer, or handed to the book and cash keeper, rolled up as he received it. The entry made by defendant in his own handwriting credited Mrs. Sawin with $50 only as paid by her on the day on which one of the acts of embezzlement was alleged to have been committed; the payment made by her, according to her testimony, having been $61. The defendant objected to the inquiry of the cash-keeper whether his cash overran that day. It obviously would have done so if the defendant had actually deposited the sum testified by Sawin to have been received by him. If this question involved a single transaction,--as if the money in the cash-drawer had been counted immediately previous to the deposit by defendant, and then immediately afterwards,--the amount of the sum deposited would be clearly shown. It would not seriously be contended that such evidence was not admissible when the amount was undisputed. The fact that the question involves the business of an entire day, and thus that, by reason of the number of transactions that had taken place there was an opportunity for mistake as to the amount received, counted, or deposited, in connection with such other transactions, so that it was possible that the discrepancy between the amount which should have been found in the drawer if...
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