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as a condition of the concession by the party, or the awarding by the court, of something to which the one giving it is not entitled as of right.10

7. Interchangeableness of terms.)— If a bond has been given when the form should have been that of an undertaking," or an undertaking when a bond should have been given,12 the deviation does not exonerate an obligor if the object of the security was obtained, and the requirement of the statute is deemed satisfied. 13

8. Ancillary character of the obligation.]—An undertaking, the object of which is to secure the payment of a suitor's claim, if established, is an incident to the judgment subsequently recovcred, and passes by an assignment, and is bound by an attachment which binds the judgment.14

It is, however, an additional security, and although it falls with a successful impeachment of the validity of the judgment, or with payment or other substantial satisfaction of the judgment, it does not, if the event expressed as the condition occurs, fall with the discharge of the judgment-debtor in bankruptcy or insolvency.1


10 Candee v. Wilcox, 26 Hun, 666 (undertaking given as condition of being allowed to retain an injunction).

Eder i. Gildersleeve, 85 Hun, 411, 32 N. Y. Supp. 1056; aff'd, 155 N. Y. 672 (as condition of denial of proceedings to punish for a contempt).

Whether the order be actually entered by the party favored is immaterial. Eder 1. Gildersleeve, supra.

11 Schoregge r'. Gordon, 29 Minn. 367 (approving Clark t. Randall, 9 Wis. 135); Cantield t'. Bates, 13 Cal. 606 (instrument purporting to be a bond on appeal containing words of obligation and having a scroll opposite the name of one of the two signers, who contemporaneously verified the instrument as their bond – held the bond of both and a substantial compliance with the statute requiring a written undertaking. The court say: Taking all our statutes together their obvious design was to put an undertaking on the same footing as a bond”).

Martin r. Bolenbaugh, 13 Cin. Wkly. L. Bul. 217. ( Bond taken by public ollicer, instead of undertaking, binds surety if not against law, and if it accomplished the purpose.)

12 Dodge r'. St. John, 96 N. Y. 260 (bond given without a penal clause).

Fawkner t. Baden, 89 Ind. 587 (an undertaking in replevin, in lieu of penal bond, as required. The court held it error to dismiss the action for this mistake). “The undertaking being ample security is a substantial compliance with the law." Judgment reversed.

S. P., Bugle r'. Mivers, 59 Ind. 73. 13 N. Y. Stat. Constr. Law, $ 16. 14 Wehle r'. Spellman, 75 N. Y. 595 (in this case an undertaking on appeal).

15 Wilson v. Field, 27 Hun, 46; s. P., Prusin 1. Brown, 45 Hun, 80, 9 St. Rep. 620.

9. Title.]- The practice is to entitle an undertaking in the cause in which it is given, in the same manner as an affidavit or notice, and for purpose of identification with the cause.

The validity of the instrument is not affected by the lack of title, if the body of it affords a sufficient identification.16

10. Recitals.] – The object of the recitals in an undertaking, as in a bond, is to express the precise intent of the parties,17 and show the consideration upon which it is made, and no other statement of consideration is necessary. The recitals should, therefore, be carefully drawn.

The advantage of well drawn recitals is that on the one hand they may serve to define and limit the liability of the sureties, and on the other they are conclusive on the sureties, when it is sought to enforce the undertaking after it has served its pur


pose. 19


The party in whose favor an undertaking is given is entitled 10 appropriate recitals for this purpose.

11. Mistake in recital.]— If the essential part of the undertaking, as required by the Code, is present, a mistake in the recitals will not affect its validity.21

16 In Winship r. Clendenning, 24 Ind. 439, omission of name of court was held not to vitiate; and see Robertson v. Moorer, 25 Tex. 428.

17 Page 29 of this volume. That the undertaking is to be construed in view of the statute also, see Cook v. Freudenthal, 80 N. Y. 202.

18 Indeed, without such recitals, the instrument may be enforced against the sureties on extrinsic evidence of those facts. Dore v. Covey, 13 Cal. 502; Prader v. Purkett, 13 id. 588.

19 Pierce v. Whiting, 63 Cal. 538 (ownership of property, recited in undertaking in attachment).

Wiseman v. Lynn, 39 Ind. 250. (Value of property recited in undertaking in replevin.)

Commissioners, etc., v. O'Rourk, 34 Hun, 349 (relation of husband and wife recited in undertaking for support of wife by husband).

Christal v. Kelly, 88 N. Y. 285 (recital sufficient proof of due issue of attachment).

Harriman 1. Rockaway Beach Pier Co., 8 Fed. Rep. 94 (estoppel as to jurisdiction of attachment, by recital in stipulation for release).

20 Dinkel v. Wehle, 13 Abb. N. C. 478 (describing judgment by wrong date, held to be fatal to the intended stay, and to entitle the party to disregard it).

So where on two appeals the undertaking only referred to “such appeal,'' it was disregarded by the court, as useless for either. Eddy v. Van Ness (Idaho, 1885), 6 Pac. Rep. 115.

21 Hyde r. Patterson, i Abb. Pr. 248. The undertaking here was dated the 12th, and recited an aflidavit made by plaintiff ; the only affidavit in the suit was made on the 13th, by a person not plaintiff. Held, that the undertaking was good, and motion to vacate proceedings for claim and delivery of personal property, denied.

12. Who may be sureties. ]- In New York the general rule is that the surety must be a resident22 of the State, and a house holder or freeholder.23 An attorney is disqualified.234

“ Householder" includes one who rents, as well as one who owns; and is held not to require a dwelling-house. 24

“Freeholder” requires the present seisin or possession of land by virtue of an estate of freehold.25

Sureties not thus qualified may be rejected, but if not objected to they may be held liable.

The same person may be surety on several undertakings, though given in the same cause at the same time, the question being one of sufficiency of his justification only.?


A married woman is not absolutely disqualified by law, but her undertaking, if accepted in the discretion of the court, must

Paul v. Cragnas (Nev. 1900), 59 Pac. 857, 47 L. R. A. 540. (Clerical mistake in referring to order by wrong date, where order was otherwise identified.)

Swain v. Graves, 8 Cal. 549 (misuse of “plaintiff ” for “ defendant” disregarded, in action on injunction).

Fuller v. Wright, 59 Ind. 333 (naming wrong court, disregarded in action on undertaking).

Stillings i. Porter, 22 Kans. 17 (omission to mention appellate court, disregarded in action on undertaking).

22 in Smith r. Chicago & N. W. R. R. Co., 19 Wis. 89, this requirement in the statute as to arrest, was extended by the court by analogy, to appeals.

23 N. Y. Code Civ. Pro., 88 812, 579. 23a See ante, p. 26.

24 It has been held to include one who rents and occupies within the State, an office for business purposes. Somerset, etc., Sav. Bank v. Huyck, 33 How. Pr. 323. So of the tenant of a mill. Delamater v. Byrne, 59 How. Pr. 71.

And under the exemption laws, which however may bear a different con. struction, ceasing to keep house, and storing one's goods, is not necessarily a cessation of housekeeping. Griffin v. Sutherland, 14 Barb. 456.

Edward Livingston's definition is, “one who occupies a house, or part oi one, in which he habitually dwells,” to which he adds the following corollaries.

1. It is not necessary that the dwelling place should either be owned or hired; an occupant at suflerance, or in his own wrong, comes within the definition,

11. By employing the word “dwells,” in the definition, it is intended to exclude a sojourner or guest. The occupant must be provided for at his own table, not board at that of another.

III. The dwelling must be so habitual as to show an intent of continuance. The quality of householder cannot be assumed merely for the purpose of using it in order to do some act for the performance of which that character is required by law, with the intent of relinquishing it when the purpose is attained. 2 Liv. Works, 648.

As to apartments, etc., see discussion of term “ lodger," in Chapman r. Bank of Scotland, 45 L. T. R. (N. S.) 215; Bradley 1. Baylis, 46 1. T. R. (N. S.) 253.

25 People 1. Hynds, 30 N. Y. 472; People ex rel. Shaw v. Scott, 8 Hun, 560. 26 Bonesteel 1. Orvis, 20 Wis. 646.

be so drawn as to charge her separate estate, 27 unless the married woman's act in force has dispensed with this qualification of her contracting power. 28 Husband may be surety on wife's bond. 29

13. Surety companies. ]- Statutes are of general adoption sanctioning the convenient resort to guaranty or surety companies for bonds and undertakings; a single surety company suffices, although the particular statute may require two sureties.30

14. Number of sureties.]— Where the statute merely requires “sureties,” execution by one surety is sufficient.31 Where it expressly requires more than one, the omission to give the required number is amendable by leave of court.32 Where two or more persons execute it, the undertaking must be joint and several in form.33

15. Party.]— Where the statute34 requires a specified number of sureties, the party on whose behalf the security is given cannot be one of the number. 35

16. Execution by party.]-A general requirement that a party “ give” an undertaking, or the like, is not construed to require him to unite in it.36

27 Matter of Weldon, 2 Monthly L. Bụl. 27.
28 As the New York Act has done. L. 1884, chap. 381.
29 Estate of Grove, 13 N. Y. Civ. Pro. Rep. 267.

30 N. Y. Code Civ. Pro., 8 811, as amended 1886 and 1895; Travis v. Travis, 46 Hun, 343.

31 N. Y. Code Civ. Pro., & 811. But a justice, before granting a provisional remedy, may require two sureties, if individuals, and such is the practice in the county of New York. See Goldmark 1. Magnolia Metal Co., 28 App. Div. 264, 51 N. Y. Supp. 68; Delamater v, Byrne, 57 How. Pr. 170.

32 State v. Russell, 17 Neb. 201, 22 N. W. Rep. 455.
As to the mode of amending see p. 474, paragraph 53 (below).

33 Code Civ. Pro., $ 812. But this provision is for the benefit of the obligee, and may be waived by him. Denike v. Denike, 61 App. Div. 492, 70 N. Y. Supp. 629.

34 As in New York, in the case of undertakings on appeal to the Court of Appeals (Code Civ. Pro., § 1334), and undertakings for a stay as matter of right on appeal to the Appellate Division from a final judgment of the same court, or from an inferior court. (Id. § 1355.)

35 Morss v. Hasbrouck, 10 Abb. N. C. 407 (rev’d, 15 Wkly. Dig. 308, on another point), and Nichols v. McLean, 98 N. Y. 458, hold that approval by the judge does not cure the objection.

36 N. Y. Code Civ. Pro., & 811; Leffiingwell v. Chave, 5 Bosw. 703, 10 Abb. Pr. 472, 19 How. Pr. 54; Drouelhat v. Rottner (Oreg. 1886), 11 Pac. Rep. 221 (so held under statute requiring " the undertaking of the appellant with one or more sureties").

Johnson v. Johnson, 31 Ohio St. 131; Tissot v. Darling, 9 Cal. 278; Curtis

Where execution by the party is required, execution by duly authorized


3* is enough.38 An omission of execution by the party may be supplied by amendment. 39

17. Qualifications of sureties.]— The New York statute requires that an affidavit of each surety accompany the undertaking, to the effect that he is a freeholder40 or householder within the State, as the case may be, and that he is a resident. 41

18. Words of representation.]— The necessity of words of representation in a bond^2 binding heirs, etc., is a relic of the old common law, not applicable to undertakings.

19. Obligee. ]- Under a statute requiring an undertaking to pay the adverse party, the person intended should be designated as such party; but an omission to do so, though ground for refusing to accept, will not invalidate it if it be accepted. 43

Undertakings being less formal than bonds, and not under seal, it appears to be agreed that an undertaking in favor of several,

v. Richards, 9 Cal. 33 (under statute prescribing execution “on the part of the appellant”).

Walker 1. Williams, 88 N. C. 7 (" on his behalf”).
For other authorities see p. 26 of this volume.
37 Unless the requirement of acknowledgment be held to preclude.
38 Page 26 of this volume, note 93.

In an action by a foreign republic an undertaking for arrest executed by the accredited minister of plaintiff in his official name is sufficient. Republic of Mexico V. Arangoiz, 5 Duer, 634.

39 Bellinger r. Gardner, 2 Abb. Pr. 441, 12 How. Pr. 381 (dictum, as to undertaking of arrest).

S. P., Langstaff v. Miles, 5 Mont. 554, 6 Pac. Rep. 356 (undertaking on attachment).

40 In Auley 1. Ostermann (Wis.), 25 N. W. Rep. 658, the court went so far as to exclude the bond of an assignee for benefit of creditors when offered in evidence, in an action against a sheriff for levying on assigned assets, because the bond omitted to state that a surety was a freeholder.

41 N. Y. Code Civ. Pro., § 811. 42 Page 28 of this volume.

43 Job v. Harlan, 13 Olio St. 485 (“ adverse party” omitted); Fitzgerald V. Gray, 59 Ind. 254 (not in terms payable to any one) ; 8. P., Clerk's Office v. Huffsteller, 67 N. C. 449.

Where the statute did not direct to whom the undertaking should be exe. cuted, an undertaking to the People was held sufficient to prevent the attachment granted on it from being vacated. Taaffe r. Rosenthal, 7 Cal. 514.

S. P., of a bond to an officer of the court instead of the party. Johnson 1'. Weatherwax, 9 Kans. 75; Titus v. Fairchild, 49 N. Y. Super. Ct. 211.

An assignment of the judgment secured by the undertaking passes the right of action on the undertaking. Burt v. Lustig, 42 N. Y. St. Rep. 700, aff'd, 137 N. Y. 538.

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