Commonwealth v. Wistar

Citations

• 142 Pa. 373
• 21 A. 872
• 1891 Pa. LEXIS 745

Syllabus

<p>[To be reported.]</p> <p>1. Although the distribution of a fund was delayed by an unsuccessful appeal from the Orphans’ Court, interest upon it for the period of such delay cannot he recovered on the recognizance sur appeal, though the condition thereof is that prescribed bey § 59, act of March 29, 1832, P. L. 213, viz., to prosecute the appeal with effect and pay all costs adjudged against the appellant.</p> <p>2. The amount of security to be given, on an appeal from the Orphans’ Court, is within the discretion of that court or of one of the judges thereof; and if the appellant is a trustee, the court may, in some circumstances, require that the recognizance be moulded so as to secure the faithful performance of his official duties during the pendency of the appeal.</p> <p>3. But when the appellant owes no duty of a fiduciary nature to the court, or to the appellees, in respect of the subject matter of the appeal, the Orphans’ Court has no power to exact, as a condition of obtaining the appeal, security in a different form from that prescribed: Commonwealth v. Judges, 10 Pa. 37; Chew’s App., 9 W. & S. 151; Koch’s Est., 4 R. 268; Commonwealth v. Judges, 102 Pa. 228, distinguished.</p> <p>4. As a general rule, whore a statute prescribes the condition of a bond or recognizance, upon which a legal remedy is given, and terms harder than the statute requires are exacted, the obligatiou is void, as a departure to the prejudice of the rights of the party entitled to Ms redress, and the surety is discharged; though, if the stronger obligation be voluntarily assumed, it is otherwise.</p>