ed highway or road for the plaintiff, in such a manner that plaintiff was not able to pass said wagon and mules without interfering, etc. Plaintiff's case-that is, the question of defendant's liability, if any exists-is to be determined from the evidence given by plaintiff, parts of which follow: a stiff hand. * A. merits, we find that on the 2d day of Decem- on? A. Same side coming right up the street. ber, 1911, John H. Wilkes, defendant in er- Q. State whether or not, when you approached ror, filed his suit in the district court of them, or came up to them, or met them, they turned out of that? A. No; didn't turn out at Tulsa county against the Tulsa Ice Com- all; just went right straight ahead. Q. About pany, a corporation. For his cause of action how close to the curb on the north side was the he alleged that on or about the 26th day of wagon at the time you met it? A. Three or September, 1911, he was, with due care, was the condition of the road on the north side four feet; not exactly, about that. Q. What traveling westward upon a certain vehicle, of the beaten track, and between there and the to wit, a bicycle, along Burnett avenue be- curb? A. It was rough. That is what was the tween Owasso and Peoria streets, in the city trouble. That is what made me lose my equilibrium. I couldn't get through without getting of Tulsa; that defendant was then and there into the rough place. Q. Well, now, you say the proprietor of a certain ice wagon and you turned out to go around? A. Yes, sir. team of mules which were, in the ordinary Q. Did you get around them? A. No; I didn't course of its business of selling and deliver- get around them. Q. What happened? A. The wagon run into my head, and hit my shoulders ing ice, then and there being driven along and head, and knocked me to the ground. Q. said highway by defendant's servants in an Now, can you tell the jury how it happened? A. easterly direction; that defendant and its Well, that is about as near as I can tell. As servants were negligent, in that they care- shoulder, and my hand went under the wheel. I went over, the wheel struck my head and lessly, negligently, and wantonly, without Q. Which hand? A. Left hand. Q. Well, did regard to the safety of the plaintiff, drove it do any injury? A. Why, yes, sir; left me said vehicle and mules, upon meeting plain-road in between those two roadways? A. How Q. Now, how was the tiff, upon the north side of said highway or was it? Q. What do you mean as to roughness road, the same being to the left of traveled or smoothness? A. Qh, well, it was smooth. part of such highway or road for the de- Q. It was smooth? A. Yes; my recollection. fendant, and being to the right of such travel-Q. How far up the road were you when you first saw this wagon turning across the street? Two blocks; two blocks; maybe a little more. Q. When you saw it turn across the street? A. No; I didn't see it turn. It was on the north side when I saw it. * Q. Now, when you approached the wagon, you saw that it was a rough street on the A. I did as I went to go around. Q. As you went to go around? A. Yes; when I got right even with the mules. Q. Now, when you saw that wagon was in that position, and you saw that all the "Q. You may state how it happened. A. balance of the street was vacant to the south of Well, I was coming down to my business early that, room for three or four wagons, and you in the morning. Q. Which way were you go- saw that you were going to run into a little ing? A. Going west, coming down to the city, rough place, only two or three feet wide, beas I had been accustomed to do for some time, tween there and the curbing, why didn't you go in passing up and down on my bicycle, and I around that way? A. Because it was my side. looked down ahead of me for a couple of blocks That was my side. Q. Sir? A. That was my or more, and I saw the ice wagon coming up, side. Q. That was your side of the road? A. and it was on the north side of the street, and Yes, sir. Q. And because that was your side I was coming down on the north side, and I of the road you were going to run in there if it ran on down, and I thought perhaps they would caused an accident, rather than go around the give me a little road, as they kept into the other way and prevent an accident; is that the curb pretty close, and I slowed my machine way you felt about it? A. What is the quesdown, and they didn't pay no attention to me, tion? (Question read.) A. I never thought of and when I got there I thought to myself I the accident. I never thought of anything only would try and run around them, but my ma- to run around, and I was on that side. Q. chine was slowed down, and it wasn't rough, Well, you did see that the road was rough in and I went to go around them, the machine there, and only about two or three feet to pass stopped, and I lost my equilibrium, and I fell in? A. I found myself, and when I discovered over into the wheel. Q. Now, whereabouts on it- Q. But you could have gone around by the the road was this wagon? A. It was on the side and avoided the accident? A. Do you north side of the street. Q. How far from the think so? Q. I asked you? A. Well, I was not middle, on the north? Describe. A. Well, it looking at that side of it; that was not my was within about three or four feet of the curb, side. Q. That is not the question. You could on the north side. Q. Which direction were have gone around to the other side and preventthey going in? A. They were going on east, I ed the accident? A. I could have gone around should say. Q. You were coming west? A. I that, and could have gone down the other street. was going west. Q. And it was on Burnett * Q. Now, what caused you to fall, Mr. street or avenue? A. Yes, sir. Q. Between Wilkes? A. I lost my equilibrium. Q. Now, what two streets? A. Between Peoria and the wagon didn't run over you then, but you Owasso. Q. Now, was there any particular lost your equilibrium and fell against the wagtraveled portion of that cross-street at that time, on; is that true? A. That is it. The wagon or was it all equally traveled? A. Well, the was right in my path where I ought to have travel going east was mostly on the south side been driving. Q. And you lost your equilibrium of the road, and coming west on the other side. and fell into the wagon? A. That is it, exQ. Well, was that a beaten track there? A. actly." Yes, sir. Q. Was the street paved there at that time? A. No, sir. Q. There was then two beaten tracks? A. Yes, sir. Q. In the street? A. Yes; one on the south, and one on the north. Q. And in which one of those beaten tracks were you going? A. I was on the north side. Q. Which one were they on? A. They were on the north side. Q. Same side that you were The only point for discussion is: Was defendant negligent, and, if so, was it the proximate cause of plaintiff's injury? [2] Section 7635, Rev. Laws 1910, requires travelers in certain kinds of conveyances "and other vehicles" meeting upon a road or bridge each to pass to the "right of the middle of the traveled part of such bridge or road," to the end that each may pass without interference. This statute but reiterates the general law of the land, usually spoken of as the "law of the road." It came to us from England, except that the English rule re quired a turning to the left. It has been held that a bicycle is a "vehicle," within the meaning of the law. State v. Collins, 16 R. I. 371, 17 Atl. 131, 3 L. R. A. 394; Thompson v. Dodge, 58 Minn. 555, 60 N. W. 545, 28 L. R. A. 608, 49 Am. St. Rep. 533. [3] The statutory requirement that travelers, when meeting, shall each turn to the right, does not make a nonobservance thereof negligence per se. Lyons v. Childs, 61 N. H. 72. For other cases, see Cent. Dig. vol. 25, tit. "Highways," § 461. Ordinarily, if a traveler, on meeting another, fails to yield half of the road by turning to the right, and such failure causes the injury, it would be actionable negligence; but it must depend, in the very nature of things and the diversity of situations likely to arise, upon the circumstances existing at the time of the meeting. In other words, the travelers, notwithstanding the general rule of law, are required, in a measure, to accommodate thenselves to the situation presented. [4] Therefore it may be generally stated that, while a traveler is ordinarily liable for accidents approximately caused by his failure to keep to the right, yet he may not be liable, even though he drove to the left, if such turning to the left was not the approximate cause of the accident. 37 Cyc. 270. That one may, under some circumstances, recover, although he turned to the left, has been held in the case of Cook v. Forgarty, 103 Iowa, 500, 72 N. W. 677, 39 L. R. A. 488, and that plaintiff cannot recover, although the defendant was on the wrong side of the road, where the injury was the result of plaintiff's own negligence, has been held in Lee v. Foley, 113 La. 663, 37 South. 594; 37 Cyc. n. 85, p. 271. The Supreme Court of Texas had before it a case very similar in its facts to the one at bar. In that case a horseman met a wagon heavily loaded with hay, and which was approaching him from the west on the extreme north side of the street, and in which the horseman, as the bicyclist did in this case, undertook to go to the north and right of the wagon, through a narrow space, while on the other side the way was open. In that case (Landa v. McDermott [Tex.] 16 S. W. 802) it is said: "The defendant cannot be charged with negligence arising from a collision or injury resulting from a mistaken judgment of the plaintiff. That he thought he had room to pass on the north or right side of the wagon, when he admits that there was no doubt as to his having room to pass on the left or south side, involved evidently a matter of judgment, which might, on the one hand, in its ultimate results, establish the fact of contributory negligence, or, on the other, the absence of any fault whatever. This risk the plaintiff assumed in the exercise of this judgment, and he cannot fairly escape its consequences. It cannot be denied that the facts Ishow that the plaintiff himself could have avoided the injuries sustained by the exercise of ordinary prudence in passing on the left side of known risk in attempting to pass on the north the wagon. This he knew, but he assumed a side of it, without which the injuries would not have been inflicted. We are of opinion that the facts do not support the finding, and that the judgment should be reversed. In Payne v. Nelson, 16 Ky. Law Rep. 239, the fact that a horseman, when meeting a vehicle, turned to the left, in place of to the right, was held to be not such negligence upon his part as to prevent him from recovering for an injury resulting from the negligence of the driver of the vehicle. In Parker v. Adams, 12 Metc. (53 Mass.) 415, 46 Am. Dec. 694, a case where there was a collision of carriages passing on a public road, it was held that the action could not be maintained by one of the parties, who was guilty of negligence at the time of the collision, although the other party was on the wrong side of the road. In Spofford v. Harlow, 3 Allen (85 Mass.) 176, where the driver of a team on the left side of a street, in technical violation of the law of the road, was allowed to recover for an injury sustained from a collision with another team, the driver of which, in meeting him, carelessly and recklessly ran against him. In Brember v. Jones, 67 N. H. 374, 30 Atl. 411, 26 L. R. A. 408, the court, having be fore it a statute apparently the same as our own, held substantially that in an action for a collision on a highway, where it appeared that there was sufficient room for both to pass, and that the collision could have been avoided if plaintiff had exercised due care, he could not recover, notwithstanding the fact that defendant did not turn to the right. In Simmonson v. Stellenmerf, 1 Ed. Sel. Cas. (N. Y.) 194, it was held that, notwithstanding the fact that travelers, when meeting, should turn to the right side of the center of the road when passing, a violation of the rule did not necessarily subject the trayeler to damages arising from a collision so as to deny him the defense that the accident was really caused by plaintiff's own negligence. [5] So, taking the law as it may be gathered from the foregoing authorities, it is only necessary to apply the principles therein found to the facts disclosed in this case. Summing up these facts, we have here a case where the plaintiff, traveling west on a bicycle, a light, easily controlled vehicle, entered a street and saw, two blocks away, an ice wagon, drawn by mules, approaching him, and being slowly driven near the curb on the north side of the street, which was 50 or 60 feet wide, and reasonably smooth and level its entire width. Plaintiff upon his approach, saw 3 or 4 feet of space on the north, to the right of the wagon, and 40 or Commissioners' Opinion, Division No. 3. Error from District Court, Hughes County; John Caruthers, Judge. 50 feet of level street on the south, to the left of the wagon, and chose to undertake to squeeze a passage through the narrow space, rather than to use the wide, level, Action by Nicholas V. Bilby and others and unobstructed portion of the street to against Albert Stewart and others. Judghis left. In doing so he lost his equilibrium ment for defendants, and plaintiffs bring and fell against the wagon, which otherwise error. Affirmed. would not have touched him. He justifies Lewis C. Lawson, of Holdenville, for plainhis conduct and founds his claim for dam-tiffs in error. Crump & Skinner, of Holdenages on the laconic answer to a question: ville, for defendants in error. "Because it was my side." He stickles for the letter of the law, and forgets its spirit; he invokes the doctrine of the "pound of flesh," and echoes the answer of the famous (?) money lender: "Is it not written in the bond?" So we hold that, under the facts of this case, as shown, the plaintiff was the sole author of his own misfortunes, and has wholly failed to show wherein any failure of duty upon the part of defendant entered therein, as an efficient moving cause. The cause should be reversed and dismissed. PER CURIAM. Adopted in whole. (55 Okl. 767) BILBY et al. v. STEWART et al. (No. 5702.) (Supreme Court of Oklahoma. Dec. 21, 1915. Rehearing Denied Jan. 11, 1916.) (Syllabus by the Court.) 1. WILLS 379-RIGHT TO JURY TRIAL-ADVISORY FINDINGS-PROBATE PROCEEDINGS. DUDLEY, C. On March 18, 1911, Waco Bruner, a full-blood Creek Indian, executed a purported will, bequeathing his allotted lands to plaintiff in error Nicholas V. Bilby, and designating the plaintiff in error H. B. Moffitt the sole executor thereof. On November 21, 1912, said alleged testator died in Hughes county, Okl., seised and possessed of said lands. He was a resident of said county at the time of his death. Bilby is the principal beneficiary under said purported will. He, however, was not related to the deceased. On November 23, 1912, Moffitt, the executor named in said purported will, presented the same to the county judge of said county, and filed a petition asking for the probate thereof. The defendants in error, claiming to be the sole and only heirs at law and next of kin of said deceased, filed a contest, protesting against the probate of said purported will, on the grounds, among others, that the same was procured through the undue influence of Bilby, the On appeal to the district court from a judg-principal beneficiary therein, and that the ment of the county court refusing to admit a alleged testator did not possess the capacity will to probate, the district court may, in its to make the same. Issues were joined and discretion, submit the questions of undue influ- a hearing had, resulting in a finding against ence and testamentary capacity to a jury, under section 6515, Rev. Laws 1910. The findings of the jury, however, are not binding, but advisory only. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 848-851; Dec. Dig. 379.] 2. WILLS 318, 386-FINDING OF FACT TESTAMENTARY CAPACITY. - Testamentary capacity, or the lack thereof, is a question of fact. There is no rule by which it may be determined, with precision, whère capacity ends and incapacity begins, but this question should be determined from all the facts and circumstances of each particular case; and, where the evidence fairly and reasonably supports the finding of testamentary incapacity, the same will not be disturbed on appeal. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 751-754, 859; Dec. Dig. 318, 386.] the contestants upon the questions of undue influence and testamentary capacity, but denying the probate of said purported will, for the reason that the testator was a fullblood Creek Indian, and on account thereof was incapable of alienating his allotted lands by will. Both the proponents and contestants appealed from this judgment to the district court of said county, where the case was tried de novo, resulting in a judgment denying the probate of said will on the ground of testamentary incapacity. From this judgment the proponents have appealed. In the trial of the case in the district court, the trial court, without objections, submitted to a jury the questions of undue influence and testamentary capacity. The 3. WILLS 21-TESTAMENTARY CAPACITY TEST. Ordinarily the test of testamentary capaci-jury found that said purported will was ty is the testator's capacity to understand the effect and consequence of his act, at the time the will is executed. [Ed. Note. For other cases, see Wills, Cent. Dig. $$ 48, 49; Dec. Dig. 21.] 4. WILLS 55 TESTAMENTARY CAPACITYSUFFICIENCY OF EVIDENCE. Evidence upon the question of testamentary capacity examined, and held to fully support the finding of incapacity. [Ed. Note.-For other cases, see Wills, Cent. Dig. $$ 137-158, 161; Dec. Dig. 55.] procured through the undue influence of Bilby, and that the alleged testator did not possess testamentary capacity to make the same. The trial court set aside the jury's finding of fact on the question of undue infiuence, but approved and adopted its finding on the question of testamentary capacity. [1] The proponents first insist that the trial court committed prejudicial error in submitting the two questions of fact to the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes jury. We think not. The right of trial, reference to the right of trial by jury, and by a jury, guaranteed under section 19, art. that, in proceedings of this kind, neither 2, of the Constitution (section 19, p. 15, Wil-party is entitled, as a matter of right, to a liams' Ann. Const.) except as modified by trial by a jury, but that the court might, in the Constitution itself, means the right as its discretion, submit certain questions of it existed in the territory of Oklahoma at fact to a jury, the findings being advisory the time of the adoption of the Constitution. only, and not binding. See, also, Estate of State ex rel. West, Atty. Gen., v. Cobb, Coun- Dolbeer, supra; In re Corson's Estate, 29 S. ty Judge, 24 Okl. 662, 104 Pac. 361, 24 L. D. 14, 135 N. W. 666; In re Hackett's Estate, R. A. (N. S.) 639; Baker v. Newton, 27 Okl. 33 S. D. 208, 145 N. W. 437. 436, 112 Pac. 1034; In re Byrd, 31 Okl. 549, 122 Pac. 516; Ex parte Dagley, 35 Okl. 180, 128 Pac. 699, 44 L. R. A. (N. S.) 389; Catron v. Deep Fork Drainage District No. 1, 35 Okl. 447, 130 Pac. 263; State Bar Commission ex rel. Williams v. Sullivan, 35 Okl. 745, 131 Pac. 703, L. R. A. 1915D, 1218. Under the law in force in the territory of Oklahoma at the time of the adoption of the Constitution, neither party in a proceeding of this kind was entitled, as a matter of right, to a trial by a jury, but the court might, in its discretion, submit certain questions of fact to a jury, the findings of which, however, were not binding, but advisory only. Section 1807, vol. 1, Wilson's Ann. St. 1903; Cartwright v. Holcomb et al., 21 Okl. 548, 97 Pac. 385; Engle v. Yorks, 7 S. D. 254, 64 N. W. 132; In re McClellan's Estate, 20 S. D. 498, 107 N. W. 681; Rich v. Bowker, 25 Kan. 7; Hudson v. Hughan et al., 56 Kan. 152, 42 Pac. 701; Gallon v. Haas, 67 Kan. 225, 72 Pac. 770; Rathjens v. Merrill, 38 Wash. 442, 80 Pac. 754; In re Benton's Estate, 131 Cal. 472, 63 Pac. 775; Estate of Dolbeer, 153 Cal. 652, 96 Pac. 266, 15 Ann. Cas. 207, note 211. The section above referred to is as follows: "When the appeal is on questions of fact or on questions of both law and fact, the trial in the district court must be de novo, and shall be conducted in the same manner as if the case and proceedings had lawfully originated in that court; and such appellate court has the same power to decide the questions of fact which the probate court or judge had, and it may, in its discretion, as in suits in chancery, and with like effect, make an order for the trial by jury of any or all the material questions of fact arising upon the issues between the parties, and such an order must state distinctly and plainly the questions of fact to be tried." Under the foregoing section of our statute, we think the trial court had a right, in its discretion, to submit the two questions of fact to the jury, and that, in setting aside the one and approving and adopting the other, it, in effect, determined, from all the evidence, that the alleged testator did not possess testamentary capacity. Proponents, however, insist that the foregoing section of our statute is in conflict with section 21, art. 7, of the Constitution, which provides: "In all jury trials, the jury shall return a general verdict, and no law in force, nor any law direct the jury to make findings on particular hereafter enacted, shall require the court to questions of fact; but the court may, in its discretion, direct such special findings.' We do not think so. This section clearly refers to cases in which the parties are entitled to a trial by a jury as a matter of right, and does not, in any manner, limit or prohibit trial courts, in proceedings of this kind, from submitting certain questions of fact to a jury. King v. Timmons, 23 Okl. 407, 100 Pac. 536 (see body of opinion). Aside from the question as to whether or not the trial court had a right to submit these two questions of fact to a jury, the proponents are not in position to complain here, for the reason that the record shows that no objections were made to the action of the trial court in this respect, but that, as a matter of fact, it was done by the consent of the parties. It is next insisted that counsel for contestants made certain admissions, after the close of the testimony, that entitled the proponents to have the alleged will probated. The admissions were made while the court was considering the question as to who had the right to open and close the argument, and the subThis section was carried forward in the stance of the admissions are that the conRevised Laws 1910 (being section 6515 there-testants conceded that the proponents had of), and is in force in this state unless re- made out a prima facie case, and that unless pugnant to the foregoing, or some other, pro- the contestants had overcome this, by a prevision of the Constitution; and, in our judg-ponderance of the evidence, the will should ment, it is not repugnant to such provision, be admitted to probate. We see nothing in or any other provision, of the Constitution this admission that deprives the contestants with reference to trial by a jury as a matter of right. This section of our statute is identical with section 359 of the Probate Code of South Dakota, and the Supreme Court of that state, in the case of Shaw et al. v. Shaw, 28 S. D. 221, 133 N. W. 292, Ann. Cas. 1914B, 554, considering the same in connection with certain provisions of the Constitution of that state similar to ours, held that it was not repugnant to the provisions of the Constitution of that state with of the right to have the question of testamentary capacity determined, upon consideration of all the evidence. There is no merit in this contention. [2-4] It is also insisted that the evidence is insufficient to support the finding of testamentary incapacity. The jury found, as above stated, that the alleged testator did not possess testamentary capacity. This finding was approved and adopted by the trial court, which had the effect of a finding We [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 544, 550-578; Dec. Dig. 159.] Commissioners' Opinion. Division No. 1. Re versed and remanded, with directions. Charles C. Black, of Lawton, for plaintiffs in error. J. E. Michalson, of Lawton, for defendant in error. of incapacity by the court, and we are called | lant given an opportunity to execute a legal upon to say whether or not the evidence fair- appeal bond. ly and reasonably supports the finding. think it does. The evidence upon the question of testamentary capacity is voluminous and sharply conflicting, and it would serve no useful purpose to set it out in detail. It Error from County Court, Comanche County; is sufficient, however, to state that the de- H. N. Whalin, Judge. ceased was a full-blood Creek Indian; he Action by Peter Gevers against Albert Wildied seised and possessed of no property oth-ken and another. Judgment for plaintiff in er than his allotted lands; he was a bachelor the county court on appeal from a justice's about 45 years old; his father and mother judgment, and defendants bring error. were dead; he left no brothers or sisters surviving him, and the contestants are his nearest relatives. Bilby had been in possession of his lands for several years prior to his death, paying a small rental therefor; the deceased had no home, but stayed with his relatives, friends, and acquaintances, roaming from place to place; he was in bad health and had been, for some time prior to his death, suffering with tuberculosis, and could not speak above a whisper; he spoke broken English, was uneducated, and knew practically nothing about the ordinary business affairs of life. From an examination of all the evidence, we are satisfied that the same fairly and reasonably supports the court's finding of testamentary incapacity. Testamentary capacity, or the lack thereof, is a question of fact. 40 Cyc. 1331; Gordon et al. v. Gordon et al., 92 Kan. 730, 142 Pac. 242. There is no rule by which it may be determined, with precision, where capacity ends and incapacity begins, but this question should be determined from all the facts and circumstances of each case. Ordinarily the test of testamentary capacity is the testator's capacity to understand the effect and consequences of his act at the time the will is executed. Wilkinson v. Service et al., 249 Ill. 146, 94 N. E. 50, Ann. Cas. 1912A, 41; Slaughter v. Heath et al., 127 Ga. 747, 57 S. E. 69, 27 L. R. A. (N. S.) 1, and note. Testator's incapacity having been determined upon evidence reasonably supporting the same, it will not be disturbed here. Gordon et al. v. Gordon et al., supra. We think the parties had a fair trial, and the judgment of the trial court should be affirmed. PER CURIAM. Adopted in whole. (54 Okl. 489) - APPEAL COLLIER, C. This action was commenced in the justice court of Comanche county on the 15th day of January, 1912, and resulted in a judgment in favor of defendant in error, hereinafter called plaintiff, against plaintiffs in error, hereinafter styled defendants. From said judgment defendants appealed to the county court of said county, and executed an appeal bond in the usual form, except that it ran to the district court, instead of to the county court. Said bond was filed in the justice court within the time prescribed by section 6387, Comp. Laws 1909 (section 5466, Rev. Laws 1910). A transcript of the proceedings in said cause in the justice court, together with the bond given for the appeal was filed in said county court; and on the 19th day of February, 1913, plaintiff moved to dismiss the appeal, upon the ground"that the said county court had no jurisdiction over the case, because the defendants have failed to give an appeal bond as required by law." The only ground of attack upon the legality of said bond is that the bond reads that the appeal is taken to the "district court," instead of to the "county court." Pending said motion to dismiss said appeal, defendants moved the court "for leave to amend the appeal bond, heretofore filed herein, by striking out the words 'district court,' where they appear in the printed part of said bond, and inserting in lieu thereof the words 'county court,'" which motion was overruled and duly excepted to. Thereupon defendants moved the court "for leave to file an appeal bond, in lieu of the one heretofore filed herein," which motion was overruled, to which ruling defendants duly excepted. The motion to dismiss said appeal was sustained, and the appeal dismissed, to which action of the court defendants duly excepted. To reverse the order dismissing said appeal, this appeal is prosecuted. WILKEN et al. v. GEVERS. (No. 5544.) (Supreme Court of Oklahoma. Nov. 9, 1915. Rehearing Denied Jan. 11, 1916.) (Syllabus by the Court.) JUSTICES OF THE PEACE 159 Section 6394, Comp. Laws 1909, provides : BOND AMENDMENT. "In proceedings on appeal, when the surety Where a bond, given in an appeal taken in the undertaking shall be insufficient, or such from a judgment rendered by a justice of the undertaking may be insufficient in form peace court, is insufficient as to surety, or amount, it shall be lawful for the court, on mosuch undertaking is insufficient in form or tion, to order a change or renewal of such unamount, it is the duty of the appellate court, dertaking, and direct that the same be certified upon timely motion of the appellant, to permit to the justice from whose judgment the appeal such undertaking to be amended or the appel- was taken, or that it be filed in said court." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes or |