
    PENNIMAN vs. BARRYMORE.
    
    Appeal from the court of the parish and city of New-Orleans.
    Surety on tionqbond,a' can’t plead
    ted the 9th maybe shewn to have been delivered the
    The words fuorteenhun-may “be berst/o«ríem
   Porter. J. ‘

delivered the opinion of the . . . court. JLhis action is brought on a bond gt-ven on taking out a writ of sequestration in a sujt in which the present plaintiff was defen- *■' r 1 ^ *s ⅛ the usual form, with the excep-tipn that/owrieew hundred and ten is written the amount which the obligors promised to pay, omitting the words dollars. The condition recites the issuing the writ, and states, that should it appear to be wrongfully taken out, the obligors will pay all damages the obligee may sustain therefrom.

The petition avers, the bond was made for $1400, conditioned to pay all damages the plaintiff might sustain, and prays judgment for that sum. The answer of the defendant excepts to the form of the suit, because he was but surety on the bond, and it is not shewn an action had been instituted against the principal—that he is not liable on the obligation for the sum claimed, or any other sum as demanded, and concludes by a prayer in reconvention.

The cause was submitted to a jury in the court below, who found a verdict in favor of .* the plaintiff for $1000. The defendant made an unsuccessful attempt to set it aside by a mo- . * . , , . . , . tion for a new trial, and judgment being rendered thereon, he appealed.

The first question in the cause is, whether the defendant being surety can be pursued at law, before recovery is sought from the principal on the bond. We think he may, for the obligation he signed was one required by law in the course 6f a judicial proceeding, and the right' to discussion in such cases is expressly denied by the positive provisions of our code. Lou. Code, 3035.

The next is in relation to an alleged defect in the instrument, owing to the bond being dated the 9th January, and the petition in the cause wherein the writ of sequestration was obtained not being hied unti 1 the 10th. This eircum stance is quite immaterial, provided the obligation was delivered on taking out the writ, and the evidence in the cause we think well justifies the conclusion the jury came to, that it was so delivered.

The most important question in the cause relates to the defect in the bond from the omission of the words dollars, or some other words after those of fourteen hundred and, ten. There can be no doubt what the parties intended todo jjjig instance—there is as little we think, that the omission of the w ord dollars proceeded from error or haste in transcribing the bond; and we are of opinion that the jury and the court below were authorised to supply the omission and act on the instrument, as if this word had been written in it The laws of this state direct, that no writ of sequestration shall issue in a case such as that which the contest between these parties presented, without bond and security being given by the party applying for it. The judge’s order in this instance, directed the plaintiff to furnish one in the sum of $1400. In compliance with the requisition of the law and the order of the judge, the obligation Was given, and the omission to insert the words dollars can be considered in no other light but a clerical error, which may be corrected when there exists as high, or higher evidence that can be resorted to, to ascertain the meaning and intention of the parties.

Again, when there is doubt as to the sense in which words are used, they may be explained by reference to other words and phrases used in the same contract. Now, in looking into the condition of this bond, we find the obli-gors stating it to be, that if the writ was wrongfully sued out, and they paid all the damages arising therefrom, the obligation was to be null and void, otherwise it was to remain in full force and virtue. According to the construction contended for at present, the bond never had any force or virtue, therefore, that construction would lead us to a conclusion, that every thing inserted in the condition was useless and for no purpose. Courts of justice have decided in other countries, that words used in a contract which fod to a manifest absurdity might be rejected, or understood, in a sense, by which the agreement would have some effect As where a man acknowledged to owe a sum of money which he promised n$ver to pay.— Where an obligation was made for threly ponds, it was held to be one for thirty pounds, to answer the intention of the parties. Where the name of the party contracted with had been omitted by mistake, the omission was allowed to be supplied by parol evidence. And even on an indictment for forgery, where the bill, when produced, appeared to be for fifty, without the addition of the word pounds, it was held that the same sum in the margin preceded by the letter £ removed all doubts, and shewed, the word fifty, in the body of the note, was intend» ^ por p0un(}Si s0 here we think the order of judge to give a bond for fourteen hundred and ten dollars removes all doubt as to the meaning of the words fourteen hundred and ten, inserted in that bond. It is one of the rules of our jurisprudence, that neither the principal or surety can escape from responsi-. bility, by an error that arises in drawing up the act by whieh they contemplated binding themselves. Si librarías in transcribendis stipulations verbis errassit: nihil nocere, quominus ct reus et fidejussor tenentur.-Dig. Liv. 50, tit. 17 l. 92; Crojac 607. 10. Co. 133. 13. Mass. 161; 2 East pleas of the crown 951.

But whether the conclusion we have just expressed be sound or not, upon general principles, there cannot be a doubt of its correctness, when considered in relation to those rules which govern what are termed, in law, judicial conventions. In regard to them, the principle is perfectly established; that vvhere any obscurity or doubt is presented by the terms in which they are drawn up, they must be interpreted by the sentence or order in pursuance of which they were made. Dig. liv. 45, tit. 1, law 52; ibid, liv. 46, tit. 5, law 9; Domat liv. 1, tit. 1, sect. 2, no. 24.

The counsel for the defendant has contended, that the slightest defect in an instrument of this kind, or variance from an order of the court, renders it mill and of no effect. The argument confounds the rights of the obligee and obligor. It is no doubt true, the former has a right to exact from his adversary a strict compliance with all the previous steps which may be required before process can issue. But if the latter fails to comply with them, and, as in this instance, furnishes an obligation which tho’ defective inpointof form, substantially and really, contains an engagement on his part, it ill becomes him, or those who join him, to en-deavour to shelter themselves from responsibility, by pleading defects which proceeded either from negligence or bad faith, and it would be a just reproach to the law if it suffered such a defence.

On the whole, we can discover no error in , the judgment below, except that part which adds interest from judicial demand on the amount found by the jury. The judge had no power either to add to the verdict, or diminish This point was fully examined in the cáse r J of Bedford vs. Jacobs, vol. 5.

Morse for the plaintiff, Merder Sf Buchan-ari for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the-parish court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed, that the plaintiff recover from the defendant the sum of one thousand dollars, with costs ip the court of the first instance, those of appeal to be borne by the appellee.  