¶1It appears from the record in this cause that the defendant Miles took every step to entitle him to an appeal, with the single exception of filing an affidavit with the justice, as is required by the statute. An appeal was allowed by the justice, and subsequently dismissed by the district court. Thereupon the plaintiff brought his suit in the circuit court, upon the recognizance filed by the defendant, with Barretto as surety, and that court rendered judgment against him.
¶2The appeal was properly dismissed in the first instance, as the affidavit was absolutely required by the statute; but the question now presented, is, whether that dismissal rendered the recognizance void. We think not. One of the conditions of the recognizance (of which a form is given in the statute) is, that the appellant shall pay the amount of the judgment rendered against him before the justice, including costs of appeal, with interest, in case his appeal shall be dismissed or discontinued.
¶3It was not the fault of the appellee that no affidavit was filed, nor can he be made to suffer for either the negligence of the appellant or of the justice. It was not for Mm to inquire into the reason for the dismissal of the appeal; he was satisfied that it was dismissed. He had been subjected to delay and expense because of the voluntary action of his antagonist, and it would be harsh indeed to drive Mm back to *434bis execution upon the justice’s judgment, and thus deprive Mm of all indemnity for tbe delay and costs of the appeal.
¶4We regard his right to sue upon the recognizance as perfect from the time of the judgment of the district court. It was a voluntary.security for the payment of the judgment, and once given, could not, be withdrawn by the party, nor invalidated by the judgment of the supreme court.
¶5We think, therefore, that the judgment of the circuit court was wrong, and must be reversed.
¶6Judgment reversed.
¶7 That a bond not good as a statutory one, is nevertheless binding as a voluntary obligation upon which an action at common law may be maintained, and is not void unless the statute so declares it, is a position well established. See Lewis, governor, etc. v. Stout, 22 Wis., where the principal authorities are collated in the opinion of DixoN, C. J. But in the case of Love v. Rockwell, 1 Wis. 386, the liability of the defendant in a like case, is placed upon the ground o estoppel. The statute required the security on an appeal to be by recognizance and in a form prescribed by it, which recites among other things that an appeal has been taken, etc. B. S. 1849, ch. 88, $ 229. And in that case the court held that the defendant was estopped from contradicting such recital, and from alleging that an appeal had not been taken.