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without words of severance, will enure in favor of either of them or all, according to the injury or other contingency contemplated.**
20. The obligation.]— The promissory words of the undertaking should be distinctly expressed to cover all that the adverse party is entitled to.
Thus under the present practice, which forbids that a judgment on appeal should repeat the original recovery, and confines it to affirmance, adding costs, etc., an undertaking to pay the sum which may be recovered or “ directed to be paid by the affirmance,” will not be accepted as satisfactory security for the original recovery."
The same principles apply in respect to the effect of departure from the statute in respect to any of the promissory words, as are stated below, in respect to amount.46
21. Amount.]—If the statute requiring an undertaking neither fixes nor authorizes the court or judge to fix a pecuniary limit to the obligation, an undertaking limited by a sum which may be less than the indemnity required, is insufficient to sustain a provisional remedy,47 or a stay,48 founded on it. This insufficiency is amendable.49 But the sureties are nevertheless liable if the undertaking served its purpose.
44 Lally v. Wise, 28 Cal. 539; Alexander v. Jacoby, 23 Ohio St. 358; Cunningham v. White, 45 How. Pr. 486.
Compare, as to bonds, p. 28 of this volume.
45 Briggs v. Brown, 13 Abb. N. C. 481; Hollister v. McNeill, 31 Hun, 629. See also Stedeker v. Bernard, 93 N. Y. 589, holding a party not estopped by his undertaking to pay, from appealing further.
46 s. 7., Staples v. Gokey, 34 Hun, 289 (sureties held liable to pay judgment on affirmance, though the undertaking omitted to bind them also as to contingency of dismissal).
By N. Y. Code Civ. Pro., $ 729, “ a bond or undertaking, required by statute to be given by a person, to entitle him to a right or privilege, or to take a proceeding, is sufficient, if it conforms substantially to the form therefor, prescribed by the statute, and does not vary therefrom to the prejudice of the rights of the party, to whom or for whose benefit it is given.”
The Code prescribes no particular form, and a substantial compliance is suficient. Episcopal Church of St. Peter v. Varian, 28 Barb. 644; Wilson 1. Allen, 3 How. Pr. 369; 8. P., Conklin 1. Dutcher, 5 id. 386; s. C., less fully, 1 Code Rep. (N. S.) 49.
47 Hisler v. Carr, 34 Cal. 641 (attachment); Deardoff v. Ulmer, 34 Ind. 353 (replevin).
48 Erp. Cottrell, 59 Cal. 418 (undertaking for double one instalment instead of for double the entire amount).
Contra, Gapen v. Stephenson, 18 Kans. 140, holding the remedy to be to move to compel additional security.
49 Page 475, paragraph 57, and note 79 thereto (below). 50 Palmer v. Vance, 13 Cal. 553.
If a statute requiring security to be approved by the court or judge, does not indicate the amount, it is implied that the court or judge shall do so.51 And where the statute requires the court or a judge to fix the amount, the approval by the court or judge of an undertaking in a given amount is a sufficient fixing of that
But such a requirement may be waived by the parties consent dispensing with any judicial direction. If the statute fixes the amount either directly or by reference to the action, the sum should be stated in the undertaking, 54 and an undertaking limited to a less sum is insufficient to sustain the proceeding founded on it.
But in these cases also the sureties are liable if it served its purpose.55
An undertaking in excess of a sum required by law is void as to the excess,56 but good for its purpose. 57
22. Construction and effect.]—For the purpose of holding sureties liable after the object of an undertaking has been secured, these instruments, and bonds for the like purposes, are liberally construed, without implying special restrictions which are unexpressed; and are regarded as contemplating the securing of each of the beneficiaries against default on the part of any one or more of the adverse parties who are within the general designation used, and extending to litigation on appeal in another court, as well as the first result below.
Thus an undertaking to pay “ all costs which may be recovered in this action,” covers costs on appeal.6
So an undertaking to pay “in case the court so directs, according to any order that may be made herein,” or, “ as the court may direct by order in this action,” becomes operative when the action is terminated by a final judgment requiring payment. It is not
51 Goldsmith 1. Gilliland, 23 Fed. Rep. 645.
Omission of the word thousand " held not to vitiate. Frankel v. Stern, 44 Cal. 168.
55 Trueblood r. Knox, 73 Ind. 310; Carver v. Carver, 77 id. 498; Dore t'. Covey, 13 Cal. 502.
56 Post 1. Doremus, 60 N. Y. 371.
57 N. C. Gold Co. 1. N. C. Ore Co., 79 N. C. 48 (undertaking without limit). Zoller 1. McDonald, 23 Cal. 136.
Unless obnoxious to the rule as to obligations colore officii. See Commis. sioners of Charities 1. Hammill, 33 Hun, 348.
58 Hendricks r. Carson, 97 Ind. 245 (so holding in action against sureties).
restricted to the first judgment, nor merged thereby; nor by a judgment dismissing the complaint, if followed by a reversal and final judgment for payment.
So an undertaking to pay a judgment in favor of two, if it, “ or any part thereof, be affirmed,” binds the sureties, if the judgment be affirmed as to one appellant, but reversed as to the other. 60
So of an undertaking reciting an action against two and engaging for the payment by one of any judgment plaintiff shall recover therein, without restriction as to whether the judgment must be against both, or which binds the sureties for payment of any judgment recovered against either, or both together, or against each severally on default by one and litigation by the other. 62 And even if the principal in the obligation defeats recovery as against himself, the obligation stands as security for a recovery by default against the co-defendant.63
An action on an undertaking is an action on a contract so as to permit the interposition of counterclaims. 64
Sureties upon an undertaking given on a further appeal (to the Court of Appeals) succeed to no right against the sureties on the undertaking on the first appeal (to the Appellate Division), although the former pay the judgment and take an assignment.
23. Signature.]— Partners should sign in their individual names, not the firm name. Agents or attorneys should sign their principals' names, adding their own, as A. B., by C. D. 67
Defects in signature are amendable.68
50 Clute v. Knies, 102 N. Y. 377, 7 N. E. Rep. 181, 5 East. Rep. 671; Caponigri v. Cooper, 70 App. Div. 124, 74 N. Y. Supp. 1116.
60 Seacord v. Morgan, 4 Abb. Pr. (N. S.) 249; s. C., 3 Keyes, 636; 35 How. Pr. 487; aff'g, 17 How. Pr. 394.
61 Poole v. Dyer, 123 Mass. 363 (bond). Otherwise where a new party was brought in. Id., and cases cited.
62 Campbell v. Brown, 121 Mass. 516 (bond).
63 Id. Compare, to the contrary, Secrest v. Barbee, 17 Ohio St. 425, holding that where an undertaking is given to obtain a second trial by the only party entitled to such second trial, which in its terms purports to bind the makers to perform the judgment which may be rendered against all the defendants, consequent upon such second trial, its legal effect is to render the makers liable only for such judgment as may be rendered against the party taking the second trial; and if such trial results in his favor, no liability arises on the undertaking.
64 Delaney v. Miller, 78 Hun, 18, 28 N. Y. Supp. 1159. 65 Wronkow v. Ooakley, 133 N. Y. 505, 28 Abb. N. C. 409, 45 St. Rep. 882.
66 But signature in the firm name is binding against a partner who directed the delivery of the undertaking so signed. Cockroft v. Claflin, 64 Barb. 464.
67 Sav. R. R. Co. t. Clark, 23 Fla, 308.
24. Rules common to undertakings and bonds. ]— Undertakings are subject to the rules stated in the article on Bonds, as to the power of the court to require one to be given as the condition of granting a discretionary order or judgment;4o the duty to reject a practicing attorney or counsel when offered as a suretyło in a court of record, at least if the fact be admitted or shown by affidavit; the necessity and effect of words of joint and several obligation; the giving of oral authority to fill blanks after execution; and the precaution to be taken by one who does not intend to be bound unless others sign.
25. Acknowledgment. ]— The signers must prove or acknowledge the undertaking in the mode required for a deed of lands.75
An acknowledgment taken before the attorney in the cause, after he is retained as such, is ineffective.76
II. EX PARTE JUSTIFICATION. 26. Modes of justification.]— In different jurisdictions different modes prevail. In some, simple approval of the judge or clerk, upon his personal knowledge, or such inquiry as he may see fit to make, is enough. The practice below stated (paragraph 40 et seq.) is the strict system prescribed in New York, consisting of a gencral affidavit of the sureties to their qualifications, before the undertaking is given followed by a formal approval by the judge; then notice of exception if they are not acceptable to the adversary and followed by examination under oath, and decision of the court or judge based on the facts disclosed by the examination. The rules stated here, however, will afford incidentally a guide to those which control in any of the simpler or laxer methods where strict precautions are not deemed necessary.
69 Page 25 of this volume. Prader r. Purkett, 13 Cal. 588 (undertaking on issue of a restraining order).
70 Page 26 of this volume. Gilbank v. Stephenson, 30 Wis. 155.
71 In Cothren v. Connaughton, 24 Wis. 134, the court, when the objection was made as ground for dismissing an appeal, refused to take judicial notice of the fact that he was an attorney.
72 Page 27 of this volume.
73 Page 32 of this volume, and see Herig v. Nougaret, 7 Ohio St. 480; Gaylor 0. Hunt, 23 Ohio St. 255.
74 Page 32 of this volume, and see Grimwood r. Wilson, 66 How. Pr. 283; Hessell 1. Johnson (Mich. 1886), 30 N. W. Rep. 209; Johnson v. Leatherwax, 9 Kans. 75.
75 N. Y. Code Civ. Pro., & 810; N, Y. Gen. Rule No. 5. 76 Bliss r. Molter, Abb. N. C. 241, 58 How, Pr. 112.
27. - combining sureties in lesser sums.]-Where the penalty of the bond, or twice the sum in the undertaking is $5,000 or upwards, the New York statute gives the court or judge a discretion 10 allow the sum in which a surety is required to justify, to be made up by the justification of two or more sureties, each in a smaller sum. But in that case a surety cannot justify in a sum less than $5,000, that is, must show that he is worth at least $10,000; and where two or more sureties are required by law to justify, the same person cannot so contribute to make up the sum for more than one of them."
28. Surety's affidavit of sufficiency.]—A bond or undertaking, except in a case where it is otherwise expressly prescribed by law, “ must be accompanied with the affidavit of each surety (or, if executed by a party without a surety, then the affidavit of the party) subjoined thereto, to the effect, that he is a resident of, and a householder or a freeholder within, the State, and is worth the penalty of the bond, or twice the sum specified in the undertaking, over all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution."
77 N. Y. Code Civ. Pro., $ 813. See Trask v. Annett, 1 Dem. 171; Matter of Thompson, 19 N. Y. St. Rep. 900.
Where two sureties are required, unless each of them justifies in the full penalty, the penalty must be twice made up, i. e., by one who is sufficient by himself and two or more others, who united are sufficient, or by two distinct sets of persons, each being worth in combination the full penalty. Est. of Burdett, 5 Monthly L. Bul. 32.
78 N. Y. Code Civ. Pro., § 812.
Sureties on an appeal to the Appellate Division must justify in double the amount of the judgment and costs.
(Hoppock v. Cottrell, 13 How. Pr. 461, denying motion to enter judgment “ secured upon appeal.")
The sureties to an undertaking on appeal need not justify in precisely double the amount of the bond, but the amount may be greater. Hill v. Burke, 62 N. Y. 111. (The aflidavit here stated that each surety was worth more than double the amount of the judgment appealed from. This is no defense to an action on the undertaking.)
A justification by a surety that he holds property worth double the amount of the undertaking, but merely as security in case he be called upon to pay the undertaking, is insufficient. Pfeiffer v. Campbell, N. Y. Daily Reg., June 7, 1886.
Affidavit of sufficiency of bail on arrest is dispensed with by N. Y. Code Civ. Pro., $ 576, but the sheriff may require examination by the officer taking acknowledgment. Id. So of bail on attachment for contempt. N. Y. Code Civ. Pro., § 2277. As to bail in the City Court of New York, there are special provisions in marine causes. Id., § 3180.