
    FORD against TOWNSEND.
    
      New York Superior Court ;
    
      General Term, May, 1863.
    
    Bond foe payment of judgment.—Effect of Appeal.—Waives.
    Where a bond with sureties was given, by one of several defendants, against whom a personal judgment had been recovered, conditioned for the payment of the amount of the judgment whenever ordered by the final decision of the court, such bond being given as a condition imposed by the court for refusing to appoint a receiver of specific property, upon which the judgment against the defendant had been declared to be a lien;—Held, that it was no defence to an action on such bond, that u$on an appeal the judgment was subsequently modified by reversing it so far as it imposed any personal liability upon the defendant who gave such bond, and affirming it as to the others.
    The voluntary act of the obligors in giving such a bond under an order which affords Ae party his election to give it or not, is a waiver of any objection to the authority of the judge making the order, to require such a bond.
    Appeal from a judgment in favor of the defendants Samuel P. Townsend, Tappen Townsend and Thomas Wilber, entered upon an order dismissing the complaint upon the trial before Mr. Justice Piebeepont on the 4th of October, 1860.
    
      The action was brought by Samuel Ford, upon a penal bond given by the defendants in compliance with an order of court, made in a previous action against the defendant Townsend, and two other persons, David and Turner, which order directed the appointment of a receiver unless the defendants in that action should give such bond.
    The object of the prior action, which was brought by the plaintiff in this action, was to recover the sum of thirty-one hundred dollars, with interest, and to have the payment thereof adjudged a lien upon the property mentioned in the bond upon which this action is brought. The plaintiff recovered a judgment for that relief and directing the appointment of a receiver if execution should be returned unsatisfied. On a subsequent application by the plaintiff for the immediate appointment of a receiver without waiting for execution, the court ordered that the defendants in that action should give a bond with two sureties for the payment of the sum recovered, and in case they should do so the lien should cease; but if they did not, a receiver should be appointed. The bond on which this action was brought was accordingly given by the present defendants; but on appeal the judgment in the former action was subsequently modified by reversing it so far as it adjudged the defendant Townsend personally liable; but affirming it as to the other defendants, and as to the appointment of the receiver.
    The present action being brought upon this bond, the answer of two of the defendants, Samuel P. and Tappen Townsend, the only ones served with process in this action,'put in issue the judgment alleged in the complaint to have been recovered March 15, 1856, and the application and order therein stated, and the legality of the same. It admitted that they, conjointly with Wilbur, executed a bond, but put in issue the one stated in the complaint. It denied that upon the execution of the bond that was executed, Samuel P. Townsend took possession of the property, but alleged that the plaintiff eloigned a part of the samei They denied by their answer that this court ever rendered any such final decision as alleged in the complaint, or by any decision ordered the defendant Samuel P. Townsend to pay anything whatever to the plaintiff, or by any decision ordered either of the obligors to said bond to pay him anything whatever, or that it has by any final decision ordered the defendants in said alleged action to pay him anything.
    They insisted that this court, by its final decision, rendered • about October 17, 1857, in said action, upon an appeal duly taken, adjudged and decided that said judgment was erroneous and void, among other things, in so far as it held that Samuel P. Townsend was bound to pay, or that the plaintiff was entitled to recover against him any sum whatever, and that said judgment was in these respects reversed.
    They denied notice of the alleged final decision, and demand of payment; and alleged that the judgment first referred to in the complaint was not lawful; and denied the right of the judge to order the giving the bond in suit, and charged that the same was given under duress.
    When the action was called on for trial a motion was made to dismiss the complaint, which being denied, defendants excepted.
    This motion was renewed after the plaintiff had given, his ' evidence and rested; and then was granted. To which exception was taken by the plaintiff’s counsel.
    W. W. Northrop, for plaintiff appellant.
    I. The justice erred in non-suiting the plaintiff.
    
      (a.) The action was properly brought in the name of Samuel Ford as plaintiff, for the bond was given to him (Stillwell v. Hurlbert, 18 N. Y. Rep., 374 ; Slack v. Heath, 4 E. D. Smith's Rep., 95, 101-4). (b.) The defendants have waived the right to question the plaintiff’s right to sue, by not setting up in their answer that he is not the real party in interest (§ 148 of the Code of Procedure). And the defendants are estopped from denying the matters recited in the bond executed by them (1 Greenleaf on Evidence, § 26 ; Sinclair v. Jackson, 8 Cow., 544, 586 ; Jackson v. Harrington, 9 Id., 86, 128; Jackson v. Brooks, 8 Wend., 426, 434).
    II. The defendant’s covenant to pay or cause to be paid to' the plaintiff the sum awarded to be due him by said judgment, and all costs and charges ordered to be paid to him thereupon, whenever ordered by this court by its final decision, is independent of and inconsistent with the liquidation of the plaintiff’s claim from the proceeds of said property.
    III. The defendants are estopped from raising the objection that a receiver has not heen appointed to take possession of said property, and to sell the same, and pay over the proceeds to the plaintiff in discharge of his claim.
    
      S. Sanxay, for defendants respondents.
    I. The complaint contained no cause of action, and should have been dismissed whenytTOi asked for; and the order dismissing it, though after-wards made, should be affirmed.
    'II. It was properly dismissed, when finally moved for, after the court had given the plaintiff a full opportunity to make out a case.
    HI. The action, if one existed, could only have been brought upon the penalty of the bond.
    TV. The bond was joint, and not several (1 Shepherd’s Touchstone, 375; Ehle v. Purdy, 6 Wend., 629).
    By suing the defendants jointly, plaintiff has elected to treat the bond as a joint one; and he could proceed, had he’made a different election, only against each severally, or against dll together (Per Buller, J., in Streatfield v. Halliday, 3 T. R., 782; see, also, Cabell v. Vaughan, 1 Wms.’ Saunders, 291, f. n.; also, Bangor Bank v. Treat, 6 Greenl., 207).
    V. In an action like this, the plaintiff must recover against all, or none. He could not possibly do so here, for Wilbur had not been served with process, nor appeared (See Downey v. Farmers’ and Mechanics’ Bank, 13 S. & R., 288). And, not being served with process nor appearing, he is not a party (Robinson v. Frost, 14 Barb., 537).
    VI. The condition of the bond is not broken. Sureties are the fmorites of the law (Moore v. Paine, 12 Wend., 126), and their engagement cannot be extended beyond the very terms of their contract (Whitcher v. Hall, 5 B. & C., 269;. Miller v. Stewart, 4 Wash. C. C. R., 26; affirmed on appeal, 9 Wheat., 680 ; Walsh v. Bailie, 10 Johns., 180 ; Wright v. Johnson, 8 Wend., 516; Evans v. Whyle, 5 Bing., 484; S. C., 1 Moo. & Mal., 468; cited by Pitman on Principal and Surety, 34; Campbell v. French, 6 T. R., 200; Arlington v. Merrick, 2 Saund., 403 ; 4 Taunt., 593).
    VII. The complaint should have stated specific breaches for which the action is brought (2 R. S., 378 ; 7 Wend., 345; 4 Wend., 570; Juliand v. Burgott, 11 Johns., 6; Drummond v. Husson, 4 Kern., 60; Nelson v. Bostwick, 5 Hill, 37).
    
      VIII. The promise of performance in the bond is joint, and not several; and there is but one thing to be done, and there can be no severance in the action (Chitt. Pl., 6 Ed. 47; Platt on Cov., 117; Marshall v. Smith, 3 Shepley, 17).
    IX. Bonds must be taken always most strongly in favor of the obligor. The condition is considered the language of the obligee (Per Baldwin, C. J., and Fitz Hebbert, J., in Bold v. Molineux, 1 Dyer, 14 b., 17 a.; see, also, 1 Shepherd’s Touchstone, 375, 376; Powell on Contracts, 396, 397; Laughter’s Case, 5 Rep., 22).
    X. The liability of a surety, cannot be more than that of the pi’incipal, upon the particular transaction or contract, in regard to which the relation of surety was created. And Samuel P. Townsend, the principal, is freed from liability by the filial decision of the general term; and the absurd idea is now advanced'of making him liable, notwithstanding.
    XI. A liability can only be incurred in the mode provided . (Drummond v. Husson, 4 Kern., 60, Bulkley v. Lord, 2 Starkie, 406), and it cannot be argued that any such liability has arisen here.
    XII. The judge had no legal right to require any such bond to be given, and it is void (U. S. v. Hipkin, 2 Hall’s Amer. Law Jour., 80); and this question can be raised collaterally (Broadhead v. McConnell, 3 Barb., 176).
    ■ XIII. A bond may be discharged by pai’ol (Dearborn v. Cross, 7 Cow., 48). And that this was dischax’ged, or never meant to be availed of, is cleax, from the fact that the order directing it to be given was never made part of the judgment roll.
    XIY. The complaint does not aver the bond to be sealed. This was necessary (Van Santvoord v. Sandford, 12 Johns., 197; Macomb v. Thompson, 14 Id., 207; Stanton v. Camp, 4 Barb., 274).
    XY. Whex’e a number of defendants are named as joint defendants, the trial record must show all the parties to be before the court, and until then, the action is in no condition to be tried.
    , XYI. A condition pi’ecedent to any possible liability of defendants, even had the general term, by its final decision, decreed a liability of the defendants, was, that S. P. Townsend should be permitted to take certain personal property. Plaintiff could not recover, unless lie had averred and proved performance of this condition fully (Oakley v. Morton, 1 Kern., 25). This point was in issue by the-answer.
    XVII. The condition is, that the obligors will pay, whenever ordered by the final decision of this court. This means' whenever they are ordered; but if it should be construed to mean, whenever either is ordered, there should have been an allegation and proof as to which obligor was ordered, and when, and how. S. P. Townsend only was, of these obligors, before the general term, and, of course, was the only 'one who could possibly have been ordered to pay; and he, it seems, was discharged from all liability to pay. It is fair to construe the bond thus, that the intent was that the bond should remain operative if the general term should hold S. P. Townsend to a personal liability; but if it should discharge him, the bond should, of course, be discharged also. It cannot honestly be assumed that the obligors of the bond meant to bind themselves, if the general term should hold any of the other parties liable; for if so, the bond would have said so; but by no latitude of construction can any such meaning be given to it (See, also, Wells v. Baldwin, 18 Johns., 45).
    XVIII. The action being treated as joint, and Wilbur not being served nor appearing, the plaintiff had no action when the cause was tried (4 Hill, 563; Id., 35 ; and see Burnham v. De Bevoise, 8 How. Pr., 159).
    XTX. The judgment at general term is now the only judgment in the cause, and that provides several conditions and' contingencies before the property in the Mercantile Hotel is liable to pay the plaintiff’s claim; and that judgment discharged Townsend altogether, and by modifying and changing the judgment which was originally given, must be construed as discharging the order of Judge Hoffman' of December 17th, and everything else connected with it, which at all affected or modified it, including, of course, the bond given under that order.
    " XX. It was clearly proved that the plaintiff in this action had no interest in it, and was not the real party in interest, and had no right to sue under sections 111-113, of the Code.
   By the Court.—Moncrief, J.

The exceptions to the admission of testimony, etc., taken by the defendants upon the trial, cannot be considered upon this appeal. “ The rule is to examine the decisions made by the (circuit) judge against the party who has lost thó verdict, and to grant or refuse a new trial according as we find them erroneous or otherwise (Elsey v. Metcalf, 1 Den., 323; Rodgers v. Murray, 3 Bosw., 357).

It remains, therefore, only to be considered whether the facts ' adduced upon the tidal, assuming them to be undisputed, would entitle the plaintiff to a judgment in his favor ? ' Did the proofs uponyvhich the plaintiff rested his case, constitute a cause of action against the defendants named in the action ?

It appears that in the month of March, 1856, one of the justices of this court, in an action wherein the present plaintiff was the plaintiff, and Henry J. David, Don M. M. Turner, Samuel P. Townsend and John Johnson were the defendants, made a certain judgment or decree, wherein and whereby it was adjudged “ by the court that the plaintiff do recover the sum of three thousand five hundred and eighty-six dollars, as well from the defendant Henry J. David, as from the defendant Don M. M. Turner, and from the defendant Samuel P. Townsend, respectively, such sum being the amount of three thousand one hundred dollars with interest, after deducting the amount of nineteen dollars and forty-three cents, etc., * ‘ * * and that the plaintiff have execution against the defendants David, Turner and Townsend severally, for such amount, being three thousand five hundred and fifty-six dollars and fifty-seven cents.

“And it is further declared and adjudged that the plaintiff is entitled to, and that he has an equitable lien upon the fix- ■ tures in such (Mercantile) Hotel, and what remains of the furniture comprised in the schedule to the mortgage, given by the plaintiff to David S. Jones.

“ And it is further declared and adjudged that a Deceiver be appointed to take charge of such furniture and fixtures and sell and dispose of the same for the payment of the said sum of three thousand five hundred and sixty-six dollars and fifty-seven cents, and the interest thereon, until the same be paid.” * * * *

It also appears that on the 17th day of December, 1856, the said justice of this court, in the same action, “ Ordered that the defendants give security within twenty-four hours, by a bond with two sureties in the penalty of five thousand dollars, conditional to pay to the plaintiff the sum of thirty-one hundred dollars, with interest and costs, or that a receiver he appointed forthwith of the hotel leases, furniture and fixtures mentioned in the plaintiff’s complaint, and in case such security be filed by the defendants, the owner or owners of the said leases, furniture and fixtures, may do what they choose with the same, and that ' the plaintiff’s lien thereon shall cease.” * * * *

Thereupon and on the 18th day of December, 1856, a bond .was executed by the defendant in this action in the words and figures following, to wit:

“ Know all men by these presents, that we, Samuel P. Townsend, of the City of Hew York, and Tappen Townsend, of the City of Brooklyn, and Thomas Wilbur, of the City of Brooklyn, are held and firmly bound unto Samuel Eord,' of the City of Hew York, in the penal sum of five thousand dollars, lawful money of the United States. For which payment well and truly be made, we bind ourselves and our and each of our heirs; executors and administrators, jointly and severally by these presents. Sealed with our seals this 18th day of December, A. D., 1856. Whereas, by a certain order or judgment made at a special term of the Superior Court, held at the City Hall, in the City of Hew York, before the Hon. Mubbay Hoffman, one of the justices of said court, bearing date the first Monday of March, A. D.,-1856, in a certain action in which Samuel Ford was and is plaintiff, and Henry I. David, Don M. M. Turner, Samuel P. Townsend and John Johnson are defendants, wherein and whereby it was adjudged that said defendants David, Turner and Townsend were .bound to pay and said plaintiff was entitled to recover against them respectively the sum of three thousand five hundred and sixty-six dollars and fifty-seven cents, together with certain costs, amounting in the whole to a sum not exceeding four thousand three hundred dollars, subject to a certain liability of the said Ford to pay for certain rooms and the use thereof, in certain premises called the Mercantile Hotel, situate at Humbers 2, 4, 6 and 8 Warren street, in the City of Hew York, and also decreeing that said Ford had an equitable lien upon certain fixtures and furniture in said Hotel for the payment of said sum, as' will more fully appear by the said judgment order, or judgment; and whereas, the said Ford did, on the 16th day of December, 1856, apply tothe said justice, the Hon. Mubbay Hoff-was discharged; the order of course never was appealed from; -m-atj for a modification of the said judgment order, so that a receiver might be appointed to take charge of said property in said Mercantile Hotel, which is charged with said equitable lien, and said justice did thereupon, on the seventeenth day of said December, order that said Townsend be permitted to take said property and do with the same as he might see fit upon his executing a bond with two sureties, who should justify in the sum of five thousand dollars conditioned to pay the amount of said recovery, as by said order will more fully appear, reference being thereunto had :

“Mow the condition of this obligation is such that if the above bounden obligors, or any or either of them shall and will well and truly pay or cause to be paid to the said Samuel Ford the .sum awarded to be due him by said judgment, and all costs and charges ordered to be paid to him thereupon, whenever ordered by the said Superior Court by its final decision, then their obligation to be void, and the obligors to be discharged, otherwise to be and remain in full force and virtue.

“ Witness our hands and seals the day and year first above written.”

[Signatures, c&c.]

The order of the 17th of December, 1856, having been complied with by the execution, delivery and approval of the foregoing bond, Mr. Justice Hoffman discharged the lien of the plaintiff, and the injunction and order for a receiver was also discharged.

It also appears that an appeal was taken from the judgment, on the 1st Monday of March, 1856, to the General Term of this court, and thereafter, and in the month of October, 1857, the general term did render its final decision affirming the hereinbefore recited portions of the judgment so' given and directed by the court at the special term held on the 1st Monday of March, 1856, and also directing, in view of .the fact that the subsequent modification of the judgment (by the order of the 16th of December, 1856,) was not présented at the general term, that the proceedings for the appointment of a receiver be first perfected and concluded, and the said property he sold by the receiver, &c. * * *

This action was brought upon the aforesaid bond averring the facts hereinbefore stated, &c.

A demand was proven to have been made of the defendants Samuel P. Townsend and Tappen Townsend prior to the commencement of this action; no demand was made upon the defendant Wilbur, nor was he served with a summons, nor did he appear in this action.

A computation was made and presented at the trial, of the amount due to the plaintiff from the defendant in this action, the principal sum is, &e. * • * *

Upon the facts thus presented, in my opinion, it is quite plain that the.plaintiff was entitled to judgment; a perfect cause of action is shown; a breach of the condition of the bond upon which the action is brought was established ; the recital in the bond shows that it was given as a substitute and in lieu of the equitable lien, which was adjudged to exist against certain furniture, &c., and it was conditioned to pay the amount of said recovery,” being a personal judgment against David, Turner and Samuel P. Townsend for the sum of three thousand five hundred and sixty-six dollars, and fifty-seyen cents; it appears too that upon the delivery of this bond, the equitable lien, the injunction and order for receiver were discharged; that the court by its final decision, at the general term, in the month of October, 1857, did “ order the sum awarded to be due to the present plaintiff by the said judgment made at the special term aforesaid, and all costs and charges ordered to be paid to him thereupon by sustaining and affirming such portions of the judgment below as fixed the amount of recovery, and gave to the plaintiff an equitable lien upon said furniture, &c., as security for its payment.

The objection that the order directing that a bond be given was without authority, the officer making the order having no power to make it, we are of opinion is not well taken—the plaintiff had an equitable lien upon the furniture &c., and an order had been made by which a receiver was to be appointed ; an application appears to have been made to the court that a receiver be appointed forthwith,. and thereupon the counsel for the defendant S. P. Townsend was heard, and the motion was granted unless he gave a bond; this he elected to do and gave the bond in question and the plaintiff’s equitable lien the execution and delivery of the bond to the plaintiff was the voluntary act of the defendant, and was a waiver of defects if any existed (Franklin v. Pendleton, 3 Sandf., 572).

The judgment should be reversed, and a new trial granted, with costs to abide the event. 
      
       Present, Boswokth, Ch. J., and Moncrief and White, JJ
     