Page images

day of

[ocr errors]

on the

day of

herein on the

19 by reciting that the inotion upon which said order was made was opposed on the part of the defendant by the affidavit of M. N., verified on the day of

19 and directing that said affidavit be filed nunc pro tunc, or for such other or further relief, etc.

FORM No. 29. Order amending order by reciting the use of omitted affidavit. [After formal parts of Order (see Form 101),continuing thus:] ORDERED, That the order of this court dated and entered herein

19,be and the same is hereby amended nunc pro tunc by reciting the reading of an affidavit of M. N., verified

19 by the defendant in opposition to the motion, and that the clerk of the county of is hereby directed to file the said affidavit of M. N. among the papers upon said motion and to indorse the same as filed nunc pro tunc as of 19

FORM No. 30. Order giving order retroactive effect, and directing entry nunc pro tunc.80 ORDERED, that this order shall have the same force and effect as if the same had been duly made and entered on or before the day of

19 and that the same be entered by the clerk of this court nunc pro tunc as of said 19

FORM No. 31. Order amending warrant of attachment by reducing the amount thereof.81 ORDERED, that the plaintiff's said motion to amend said warrant of attachment by reducing the same to the sum of dollars be and the same is hereby granted, and that said warrant of attachment granted in this action on the

day of 19 , be and it is hereby amended so as to reduce the amount thereof to the sum of


[ocr errors]

day of

FORM No. 32. Affidavit to obtain order to annex by amendment, an omitted clause in a

order, required by court rule. [State proceedings, as on original motion, or annex and refe te copy of original affidavit.]

That an order was thereupon duly made and entered in thi action, on the

19 referring it to 80 See limitations upon the power 81 From Sulzbacher v. Cawthra, 14 of the court to make such an order, N. Y. 755, aff'g 14 Misc. 545. I announced in Guarantee Trust Co. v. Pfeiffer 1. Wheeler, 76 Hun, 280, th Phila., etc., R. Co., 160 N. Y. 1. court refused to permit such

day of


as sole referee, to compute and ascertain the amount due this plaintiff, upon the bond and mortgage described in the complaint herein. That the defendant M. is an infant, and has put in a general answer by his guardian. That by a clerical error, there was omitted from said order the direction prescribed by Rule LX of the General Rules of Practice, in all actions for the foreclosure of mortgages, where there are infant defendants who have put in general answers by their guardians, viz. [reciting it]; wherefore deponent prays that an order may be entered herein, amending said order of reference, dated (as above), and entered by the clerk of this court, on the

day of

19 , by inserting in said order a clause as follows: [stating it), and that the clerk be directed to annex the order of amendment to the judgment roll, and refer to it therein. [Jurat.)

[Signature.] FORM No. 33. Order to amend order to make it comply with court rule. [After formal parts of order (see Form 101), continuing thus:] ORDERED, that the order of this court in this action, dated the 19 and entered on the

day of 19 wherein it was referred to

to compute the amount due on the bond and mortgage in the complaint mentioned, be and the same is hereby amended, by inserting after the word in the line thereof the following clause: [stating it.]

And it is further ordered, that the clerk of this court be, and hereby is, directed to annex this order to the judgment roll in this action filed in the office of the said clerk the day of 19 , and to indicate that this amendment has been made, by making a note upon the margin of the original order of 19, referring to this order.

day of

[ocr errors]
[ocr errors]

FORM No. 34. Order to amend by canceling and interlineation.82 [After formal parts of order (see Form 101), continue thus:7 ORDERED, that said referee may, and he is hereby authorized and

amendment, and vacated the attachment, where it appeared that plaintiik had designedly included a note not yet due and the court considered that he had not acted in good faith.

82 The method of canceling and interlining, involving as it does a partial obliteration of the original paper, is not favored. The more usual and

preferable method is shown in the preceding forms, viz., by amending ly adding or striking out, and providing that a reference to the amen ling order be made on the margin of the original; the original order is leit untouched except the marginal note referring to the amending order.

directed to amend his said report, nunc pro tunc,83 as of the date thereof, so that the statement and finding therein contained in respect to the lien of the mortgage made by the defendant W. X. and held by M. X., and of the amount due upon said mortgage and upon the bond accompanying the same for principal and interest at folios 38, 39 and 40, shall in said folio 40, and at the top of page 14, and after the figures “ $1,358.33,” read as follows, “ with interest at 7 per cent. per annum from September 1, 1878, amounting together at the date of this my report to the sum of $1,845 86."

[On filing this order the Referee should make the correction in the report, and note in the margin that it is made by him on a day named, by virtue of the order, identifying it and referring to it as on file or annexed.]

83 See, under subjects of Decisions and Judgments, the limitations upon

the court's power to so amend. See also beginning of this subdivision.



BONDS. 1. When given.

15. Execution. 2. Penal clause.

16. — conditional. 3. Parties.— Obligor.

17. Blanks. 4. - attorneys, etc.

18. Acknowledgment, approval, filing, 5. naming obligors.

etc., defects and amending. 6. describing sureties.

FORMS. words of joint or several (35) Bond given in reference to .a obligation.

legal proceeding. 8. words of representation.

(36) Affidavit of sufficiency of 9. Parties.- Obligee.

surety. 10. - words of joint or several in (37) Recitals and condition of bond terest.

given to indemnify surety. 11. - words of representation. (38)

- to sheriff. 12. Date.

(39) by deputy to sheriff. 13. Condition, and recitals.

(40) of city marshal. 14. Seal.

1. When given.]— Where a statute or rule of court requires security to be given, without prescribing the form, a bond is the proper instrument,84 unless the court directs otherwise.85 The distinction between a bond and an undertaking is stated under the head of Undertakings.86

The court may without special authority of law require a bond to be given as a condition of its granting an order or direction that is matter of discretion with it.87

And a bond voluntarily given, as a condition for a consent granted by the adverse party, is valid.88

2. Penal clause.]—A statute or rule requiring a bond to be given in a judicial proceeding calls for an instrument with a penal clause.89 But a party for whose benefit such a bond is required may waive a strict compliance with the statute, and may

84 See, for instance, Bigler v. Waller, 12 Wall. 142, 149 (requiring a bond under a statute calling for “good and sufficient security”).

85 Thayer v. Lewis, 4 Den. 269, where covenants in favor of separate parties were required, in one instrument, in preference to a bond.

86 Where a bond is required by statute the requirement is satisfied by an undertaking. N. Y. Stat. Const. Law, $ 16.

87 Knoch 1. Funke, 28 Abb. N. C. 240 (security as a condition of revivor); Smith r, Falconer, 11 Hun, 481 (bond to pay judgment); People ex rel. Fuller r. Oneida C. P., 18 Wend. 652 (security for costs).

88 Rynearson 1. Fredenburg, 42 Mich. 412 (bond to pay decree, as condition of dissolution of injunction). See Smith v. Mollson, 148 N. Y. 241.

89 Warner v. Ross, 9 Abb. N. C. 385; S. P., Van Loon v. Lyons, 61 N. Y. 22; Tiffany v. Lord, 65 id. 310.

accept and enforce an instrument defective as a bond, provided it is voluntarily entered into upon a good consideration, and is otherwise valid as a contract at common law.90

The penal sum is usually twice the principal intended to be secured.91

3. Parties.- Obligor. ]-An order containing a general requirement that a party give a bond, or file a bond, is satisfied by a bond executed only by third persons. And if two or more sureties are to be required this should be indicated.93

4. attorneys, etc.]— Under the usual rule that an attorney or counsellor cannot be surety on any bond required in any judicial proceeding, 94 the clerk should not approve an undertaking signed by an attorney96 as surety; but if the bond or under

90 Carr v. Sterling, 114 N. Y. 558; Warner 1'. Ross, 9 Abb. N. C. 385; Board of Education v. Fonda, 77 N. Y. 350 (seal omitted); Stephenson v. Monmouth, etc., Co., 84 Fed. Rep. 114, 54 U. S. App. 499. Substantial compliance with statutory requirements is sufficient, and a defect may be cured by an amendment. N. Y. Code Civ. Pro., 88 729, 730.

91 The effect of omitting a penalty is to make the liability commensurate with the condition. Dodge v. St. John, 96 N. Y. 260, 264; Tischler 1. Fishman, 34 Misc. 172, 68 N. Y. Supp. 787. Under N. Y. Code Civ. Pro., 1915, a bond in a penal sum has the same effect as a covenant to pay the sum mentioned in the condition. The recovery may include interest in excess of the penal sum. Hood v. Hayward, 124 N. Y. 1.

02 Stevens r. Richardson, 20 Blatchf. 53; S. c., 9 Fed. Rep. 191 (holding that a bond by surety only, and not naming principals as obligors, satisfied the statute as to removal of causes, which requires the petitioner “ to make and file,” etc.). See also Grand Gulf R. R. Co. v. Conger, 9 Sm. & M. 505; Taylor v. Ricards, 9 Ark. 378.

S P., N. Y. Code Civ. Pro., $ 811, providing that where a bond is required a party need not join with the sureties in the execution thereof unless the particular provision of the Code requires him to execute the same.

93 By N. Y. Code Civ. Pro., & 811, where a statute or rule requires a bond “with sureties,” without otherwise indicating the number, one sufficient surety is enough. But the invariable practice is to require two sureties, if individuals. Goldmark v. Magnolia Metal Co., 28 App. Div. 264, 51 N. Y. Supp68. One surety company is sufficient. Code, $ 811.

So held, also, in Iowa, under the statute provision that in construing a statute, words in the singular may be extended to the plural, and words ir the plural may be applied to the singular. Elliott v. Stevens, 10 Iowa, 418 (an attachment bond with only one surety held sufficient, although the Code employed the word “sureties").

94 N. Y. Gen. Rule, 5.

05 The rule has been held not to apply to one who has left practice for more than a year and engaged in other business. Stringham v. Stewart, 8 N. Y Civ. Pro., R., 420; Evans 1. Harris, 47 N. Y. Super. Ct. 366 (an undertaking) But the court may reject any attorney.

« PreviousContinue »