
    Jambs Lehan vs. Timothy Good & others. Same vs. Thomas Good & others.
    A defendant, against whom judgment had been rendered, obtained 'a supersedeas of execution, on giving a bond conditioned, among other things, to “ sue cut and prosecute to effect a writ of review of the action on which said judgment was rendered, commencing the same to be entered at the next term ” of the court in which the judgment was rendered; and afterwards obtained an order for a review in general terms, without specifying the term at which it should be entered; and not being able,before the expiration of the time of service for the term mentioned in the bond, to procure a service of the writ of review on the original plaintiff at the place where he was informed by his attorney of record that he resided, though he might have served it on said attorney, altered the writ so as to make it returnable at the next ensuing term of the court, and duly served and entered it at that term. It was held, that this condition in the bond was valid; that it was not controlled by the generality of the subsequent order granting the review; that it was broken by the failure to enter the review at the term specified; and that the facts of the case constituted no justification for such failure, and no defence to an action for such breach.
    Judgment and satisfaction, in an action on a bond given to dissolve an attachment, constitute no defence to an action on a bond given to obtain a review of the action in which the attachment was made, for a breach of a condition to enter such review at the next term of the court.
    The first of these actions was debt on a bond, dated October 23d, 1848, made by the defendant Good as principal, and the other defendants as sureties in the sum of six hundred dollars, the condition of which was as follows: “ Whereas the said Lehan, at the September term of the court of common pleas, holden at Lowell within and for the county of Middlesex, recovered judgment against the said Good ” for a certain amount of damages and costs, “ and thereafter the said court, at its October term, held at Boston within and for the county of Suffolk, upon the petition of said Good, ordered a supersedeas of the execution of said judgment, on condition that he should give a bond to the said Lehan in the penal sum above named, with sureties,” &c., “conditioned as is hereinafter stated; ” “ now the condition of this obligation is such, that if the above bound Good shall sue out and prosecute to effect a writ of review of the action on which said judgment was rendered, commencing the same to be entered at the next term of said court to be holden at Cambridge within and for the county of Middlesex on the second Monday of December next, and shall pay to the said Lehan the sum for which judgment was rendered as aforesaid, with interest,” &c., “ in case the said former judgment shall be affirmed in full; and the sum for which judgment shall be rendered, if said former judgment shall be affirmed in part; or if the former judgment shall be wholly reversed and annulled, then this obligation to be void,” &c. The failure to enter the review at the December term was the breach relied on by the plaintiff.
    The defendants pleaded the general issue and filed a specification of defence, stating, that in addition to all matters which might be given in evidence under the general issue, they would rely on the following facts:" That the writ of review in the action referred to in the bond in suit was ordered by the court on or about the 28th of November, 1848, being the last day of service for the December term of the court of common pleas, 1848; that the defendant used all possible diligence to have the writ of review served on Lehan at Lowell, at which place he was described in the original writ as residing ; that the writ of review failed of service by reason of the absence of Lehan from Lowell, and was therefore made returnable at the March term, 1850. And the defendants further gave notice that they should rely on the facts, that pending the petition for a review, Lehan commenced an action against them, returnable at said December term, on a bond given by them to dissolve an attachment in the original action brought by Lehan against Timothy Good, and conditioned for the payment of any judgment in that action within thirty days after its recovery; and that in the action so brought on that bond Lehan obtained a judgment, which the defendants satisfied.
    At the trial in the court of common pleas, before Hoar, J., the attesting witness to the bond, being called by the plaintiff to prove its execution, testified that he wrote the bond and witnessed its execution; that he was Good’s attorney on the petition for a supersedeas and review; that the review was ordered by the court on the last day, or the last day but one, of service for the December term, 1848, in general terms, without specifying the term at which it should be entered; that on receiving notice of such order from the clerk, he immediately took from the clerk a blank writ of review, and filled it up, dating it on that day, and making it returnable at the December term, and immediately sent it by express to Lowell, where he had been informed by B. F. Butler, Esq., who was the attorney for Lehan in the original suit and on the petition for a review, that Lehan lived; that he received the writ from the officer after the last day of service, without any service thereof having been made; and then changed the date and return day of the writ, making it returnable at the March term. It appeared by the officer’s return, that the writ was served on Lehan by giving an attested copy thereof to B. F. Butler, Esq., his attorney of record.
    The bill of exceptions provided that either party might refer to the records, proceedings, and papers filed, in the original suit, the petition for a review, and the present action; and also to the record of the action upon the bond to dissolve the attachment in the original suit, and to the execution thereon issued, with the officer’s return of satisfaction. The bill of exceptions then concluded as follows: “ The defendants, for their defence, relied upon the insufficiency of the bond and the evidence above stated to maintain this action; and upon the records, proceedings, and papers, (which it is agreed in this bill of exceptions, as above stated, that either party may refer to,) as constituting a good and sufficient defence to the action. But the presiding judge ruled, that the evidence was sufficient to maintain the action, that the facts above referred to did not constitute a legal defence, and that the bond was forfeited; and the jury returned a verdict for the plaintiff. To which rulings in matter of law the defendants except,” &c.
    The second case was similar to the first in all respects, except that in that case no allusion was made, either in the specification of defence, or in the bill of exceptions, to any proceedings on a bond given to dissolve the attachment in the original suit.
    
      F. Hilliard, for the defendants.
    
      B. F. Butler, for the plaintiff.
   Fletcher, J.

These cases are substantially alike; and may be considered together as one action. From the bill of exceptions, it does not appear, that the defendants, upon the trial of the case in the court below, presented any particular, distinct points of law, and requested the ruling of the court thereon. The bill states that the defendants, for their defence, relied upon the insufficiency of the bond, and the evi* dence, and upon the records, proceedings, and papers to which it was agreed the parties might refer. This is all exceedingly general and indefinite. In what particulars the bond and the evidence were deemed to be insufficient, is not stated, nor does it appear what particular view or views were taken in the court below of the records, proceedings, and papers, as constituting a good defence to the action.

There being no particular position taken on the part of the defendants, the only rulings of the court, which appear, are that the evidence was sufficient to maintain the action, and that the facts disclosed did not constitute a legal defence, and that the bond was forfeited. To which rulings, “ in matters of law,” the bill states the defendants excepted. What were the “ matters of law ” embraced in the rulings, to which exception was taken, cannot be very satisfactorily ascertained. A bill of exceptions should exhibit clearly and definitely the points of law ruled by the court below, and it is only those points, which this court can properly be called on to consider on exceptions.

Upon the hearing in this court, it was. maintained in behalf of the defendant, that the whole bond, or at least that part, the breach of which was alleged, was void upon various grounds, which were particularly stated, but which did not appear in the bill of exceptions, and so far as appeared were presented originally and for the first time in this court, without having been particularly presented to, and ruled upon by the court below. In cases upon exceptions from the court of common pleas new questions should not be raised in this court. The several positions taken in behalf of the defendant have, however, been fully considered by this court. There is nothing in fact or in law to maintain the general proposition, that the bond is wholly void. But it is said that the condition, a breach of which was alleged, that the review should be entered at the next December term of the court is void, because it varies from, or goes beyond the statute, that the designation of the term of the court is merely surplusage, that the language is that of recital, and not of obligation, and that the subsequent order of the court granting a review, which is general, interprets and controls the bond in this respect, and that it is a condition to do an illegal act, and to render it legal, the qualification should have been added, “ if the court shall order a review.”

The twenty-second section of the ninety-ninth chapter of the revised statutes is as follows: “If the execution-in the original action has not been satisfied, the court may order a stay or supersedeas thereof, upon security given by the petitioner to the adverse party to pay whatever shall appear to be due to him after the final judgment in the review, or upon such other terms as the court shall think just and reasonable.” By this section the court has the power not only to take security for what may be found due, but also to prescribe such other terms as may be thought just and reasonable. The condition, that the review should be entered at the next term of the court, was surely and manifestly a most just and reasonable condition. To have left the review to be entered at some remote or indefinite period, would have been highly unjust and unreasonable. This condition, therefore, clearly does not vary from or go beyond the statute, nor is the designation of the term of the court surplusage, nor is the language of the condition that of recital merely, but is in form and effect binding and obligatory. The order of the court for a review, being general, not designating the particular term of the court at which it should be entered, cannot upon any principle be taken to vary or control the condition of the bond. On the contrary, in the case of Hobart v. Tilton, 1 Greenl. 399, it was held, that where a review is granted, without designating the time at which it shall be entered, the writ must be entered at the next following term. Whether or not it would have been held under the general order for a review in this case, that the plaintiff in review was bound to enter his suit at the next term ; certain it is, that the general order cannot defeat or weaken the express condition in the bond. It would occasion great mischief to allow a party after having obtained a supersedeas of an execution against him to choose his own time for entering the review.

Because the review was not actually granted when the bond was given, it by no means follows that the condition was, for that reason, a condition to do an illegal act. It was no doubt expected, at the time, that a review would be granted, and the condition was inserted to have effect in that event. If the review had not in fact been granted, other questions might have arisen which need not now be considered.

It is worthy of notice that the statute provides, that upon a petition for a review the court may order a stay or supersedeas of an execution^ upon security being given by the petitioner to pay what may be found due to the adverse party, upon the final judgment in review, but does not, in express terms, provide indemnity to the adverse party for the stay or supersedeas of his execution in the event that the review shall not be granted. In the bond in the present case, though a supersedeas of the execution was granted, there is no provision that the petitioner should indemnify the other party for the stay of his execution, if there should be a failure to obtain a review. A party might be very seriously injured by the stay of his execution in case no review should be granted. In granting a supersedeas, the court might perhaps, under the general power to impose such terms as should be thought just and reasonable, in addition to the security to pay what might be found due to the adverse party upon final judgment in review, require the petitioner to give security to pay the execution, in case the petition for a review should be refused; but upon this it is unnecessary to express any opinion.

The facts, set out as explaining the reason why the condition of the bond was not complied with, are also relied upon as furnishing a sufficient ground of defence. These facts, surely, do not show a compliance with the bond, nor do they show that a compliance was impossible, nor that it would have been illegal; they only show that the failure was occasioned by a misapprehension in regard to the place of abode of the defendant in review. Upon the facts of the case, the writ of review might have been served and should have been served apon the attorney of the defendant in review for the December term, as it was in fact served on the attorney for the March térm.

The obligors must show performance of the condition, or that performance was prevented by the act of God, or by the act of the law, or by the act of the obligee himself. But the condition clearly was not performed, nor was the performance prevented by any cause recognized in the law as a justification of a non-performance. The facts show merely, that the plaintiff in review failed to perform the condition in the bond by reason of a mistake, but that mistake can, upon no principle known to the law, constitute a defence to the present action.

In the case against Timothy Good & others, it is set out as a defence to the action, that a bond given by him to dissolve an attachment in the original suit of Lehan against him, has been put in suit, and a judgment and satisfaction obtained. But that proceeding is totally irrelevant to this case, and can upon no principle furnish a defence in the present action. The suit upon the bond to dissolve the attachment, and the present suit, have not the slightest relation to each other.

The defendants’ exceptions must be overruled, and judgment rendered according to the verdict for the breach; the amount of damages to be ascertained.  