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CHAPTER XIX.

OF SURETIES ON OBLIGATIONS GIVEN IN THE COURSE OF

THE ADMINISTRATION OF JUSTICE.

$ 511. Sureties on judicial bonds. 8 520. When surety on appeal bond 512. Essential elements of an ap

not liable for debt-When peal bond-Failure of con

liable for costs. şideration.

521. When surety on appeal bond 513. Construction of appeal bonds

discharged if his risk in. -Effect of change of venue

creased. to another county-Abolish

522. When sureties on appeal ment of appellate court

bond not released by con. All obligors on appeal bond

tract for settlement.
liable if judgment affirmed

523. Judgment against surety on
against any - Amendment
after appeal.

appeal bond without suit. 514. Same, continued — Liability 524. When surety on appeal bond of sureties for deterioration

liable to suit if execution pending appeal-Statutes

against principal stayed. Meaning of “affirmance"

525. Liability of surety on appeal -Liability for interest

bond if judgment afterAttorney's fees.

wards rendered by consent 515. Same, continued — Surety's

of principal, etc.
liability for rents pending

526. Whether assignee of judg.
appeal-Eventual condem-
nation money-Alimony.

ment appealed from may 516. Construction of defective ap

sue on appeal bond without peal and other court bonds

assignment thereof. -Cases disregarding de- 527. Whether appeal bond surefects-Holding that misre

ties liable for deficiency decital of judgment, court or

cree-To whom costs paya. subject matter does not af

ble-New bond. fect validity.

528. When surety on appeal bond 517. Which set of sureties bound

liable, notwithstanding rewhen there are two appeals

versal, by intermediate in the same case.

court, for final judgment. 518. Same, continued-Cases holding the latest set of sure

529. How surety on appeal bond ties primarily liable and

affected by death of princi. earlier sets released by set

pal. tlements with them, etc. 530. Surety on appeal bond only 519. When surety on appeal bond

bound for particular judgliable to former surety for

ment appealed from-Other the debt.

cases.

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$ 531. Object of appeal bond 8 544. No defense to surety on Surety's liability contin

forthcoming

bond that gent-When becomes fixed

property did not belong to -Partial affirmance-Can

principal not

question judgment, 545. Miscellaneous cases concernwhen.

ing sureties on forthcoming 532. Surety not released by fur

bonds.
ther appeal-Petition for 546. Liability of sureties
rehearing, or want of pen-

bonds given to dissolve at-
alty — Statutory
"under-

tachment-Surety not liable
taking."

if attachment dissolved, or 533. Sufficiency of sureties on ap

if attachment issued withpeal bond—Justification

out authority-Amendment When guilty of contempt.

of declaration – Liability 534. Judgment against sureties on

for judgment.
appeal bonds upon motion- 547. Liability of surety on bond
Pleading-Evidence.

given to dissolve attach535. Pleading and evidence, con

ment when defendants tinued Estoppel Con

changed or judgment had ditional delivery.

against only part of de536. Surety on appeal bond may

fendants. purchase or take an assign

548. When judgment against prinment of judgment—When

cipal conclusive against surety may recover indem

surety on bond to dissolve nity for payment of judg.

attachment-Estoppel. ment-Other cases.

549. How surety on bond to dis537. Miscellaneous cases as to lia

solve attachment and on apbility of sureties on appeal

peal bond affected by bankbonds.

ruptcy of principal. 538. Liability of sureties

550. Miscellaneous cases concernforthcoming, claim and de

ing sureties on bonds given
livery and release bonds-

in attachment proceedings.
Judgment—Amendment of
pleadings, effect of.

551. Liability of sureties on pe. 539. Defenses to sureties on re

titioning creditors' bond

under Bankrupt Act of
lease and delivery bonds-

1898.
Surety forthcoming
bond, whether entitled to

552. When execution of release

bond releases sureties on atpossession of property.

tachment bond. 540. Construction of forthcoming bonds.

553. Attachment bonds—Measure 541. Construction of forthcoming

of damages — Attorneys' bonds, continued-Form of

fees. judgment.

554. Surety on injunction bond 542. Sureties forthcoming

not liable for judgment if bonds liable for deteriora

it is misdescribed. tion, etc.

555. Liability of surety on in543. Defenses to suits on forth

junction bond for judg. coming bonds.

ment, damages, interest,

on

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costs, etc. — Unsuccessful § 564. When surety in replevin
motion to dissolve.

bond discharged by refer$ 556. Liability of surety on in

ence of replevin suit to arjunction bond for damages,

bitrators. continued.

565. When surety in replevin 557. Liability of surety in in

bond bound for money junction bond if complain

judgment against his prinant dismiss his bill by

cipal though irregular. agreement with defendant,

566. Whether surety in replevin or agree to a decree dis

bond liable if defendant in missing or continuing the

replevin suit changed, suits same,

consolidated or made to fol. 558, Liability of surety on in

low the result in one.
junction bond where parties
to injunction suit agree to

567. Surety in replevin bond not

liable when return of prop-
have the same tried at
chambers–Or arbitrated-

erty rendered impossible by

act of law. Dissolution for contempt. 559. Liability of surety in in

568. Miscellaneous cases concernjunction bond when

ing sureties in replevin
only of several for whom

bonds.
he is liable is charged-Or, 569. Same, continued.
if injunction modified.

570. Measure of damages in suit 560. Miscellaneous cases as to in

upon replevin bond. junction bonds-New par- 571. Measure of damages in suit ties—When cause of action

upon replevin bond, contin.
upon bond accrues-Assign-

ued.
ment-Who may sue upon 572. Attorneys' fees of successful
an injunction bond.

party as an element of 561. Damages recoverable upon

damages. injunction bond-Instances

573. Liability of surety on stay -Attorney's fees as an ele

bond. ment of damages-Rule in

574. Stay bonds, continued-Lia-
U. S. courts-Construction

bility for deterioration, tax-
of injunction bonds - In
what court suit may be 575. Liability of surety for costs
brought, etc.

-Special instances. 562. Replevin bonds -- Conditions

576. Bonds for costs, continued. independent - Failure of

577. Statutory bond in seducconsideration Satisfac

tion cases in Georgiation of judgment upon re.

Construction. plevin bond bars suit for

578. Surety in indemnifying malicious prosecution-Con

bond to sheriff liable with dition impossible of per

sheriff in trespass. formance.

579. Miscellaneous cases concern. 563. Liability of sureties on re

ing sureties on bonds given plevin bonds, when conclud

in the course of the admin. ed by judgment against

istration of justice. their principal.

580. Same, continued.

es, etc.

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§ 511. Sureties on judicial bonds. Such cases relating to sureties on obligations given in the course of the administration of justice as do not more properly come under some other subdivision of this work will now be noticed. Sureties on such obligations, like all other sureties, have a right to stand on the strict terms of their contract. Their contracts are construed in all respects like other contracts of suretyship. The essential elements are the same, and they are released by non-liability of the principal, want or failure of consideration, giving time or other alteration without their consent the same as other sureties, all of which is shown in detail in the following sections.

$ 512. Essential elements of an appeal bond-Failure of consideration. An appeal bond like other contracts of suretyship must have proper parties, subject matter on which to act, must state the contract 20 and must be supported by a legal

name

was

20 In Bennett v. Superior Court, acknowledge himself to be bound 113 Calif. 440, 45 Pac. Rep. 808, de- in any amount or upon any condifendant appealing from a judg- tions. His name is simply atment of a justice of the peace filed tached to an undertaking which, a bond before the justice with two upon its face, shows that he is not sureties. One of them failed to a party to it. The case of Dore v. justify and a third party who jus- Covey, 13 Calif. 502, is not in tified signed the bond, although his point. There the name of one of

was nowhere mentioned in the sureties omitted from it. Held, by a divided court, that the body of the bond, and the the paper was not a bond with court held the omission immate“sureties” required by the stat rial, saying it is not necessary that ute, that the attempted appeal was the names of the stipulators should void and must be dismissed. Not- be inserted in the body of the bond withstanding that the superior to make it obligatory; and, as a court of San Diego county, to necessary conclusion from such which the appeal was taken had holding, declared the omission of allowed the appellant to file a new the name of one of the sureties appeal bond in that court. The from the body of the bond imma. court, after quoting the bond, terial. That decision is clearly which read,

We, the un- correct. But this is no such case. dersigned E. W. Newkirk and E. F. Here the names of two purported Chase, do hereby * undertake sureties are inserted in the body

to which amount we acknowls of the bond, and Gassen's name is edge ourselves jointly and severally not one of them; the insertion of bound,” said (p. 442): It ap- two other names results in the nec. pears that Gassen (the new surety) essary exclusion of his name. It does not agree to do anything. He cannot be assumed that his name makes no promises. He does not was intended to be placed there.

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consideration. As the term indicates it must be under seal.21
The principal in an appeal bond must be one who has such an
interest in the judgment order or decree appealed from as en-
titles him to the statutory right of appeal.22 No one can be a a
surety who is already liable for the judgment appealed from.23

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In Hibernia Society 644, was an action on an appeal Freese, 127 Calif. 70, 59 Pac. Rep. bond given by a defendant in a 769, an appeal bond dated and ac- foreclosure suit who was not the knowledged prior to the appeal and mortgagor, or liable for the mortapparently referring to an earlier gage, conditioned for the payment appeal in the same case was held of any deficiency on sale; held, that insufficient and appeal dismissed. the undertaking was valid and en

21 In King Hardware Co. v. Bow. forceable even though the party
den, 113 Ga. 924, 39 8. E. Rep. 404, giving the bond could in no event
it was held that an appeal bond be held personally on the mortgage
signed “Ring Hardware Co. (L. debt. Cf. Wanless v. West Chicago
8.), per Clyde L. King, Sec. and St. R. R. Co., 77 Hl. App. 120.
Treas., Prin.; W. D. Burch (L. S.), 23 Thus an appeal bond with a
Sec'y," was insufficient to bind the co-defendant of appellant as the
King Hardware Company whether only surety is a nullity; appeal
it was regarded as a partnership must be dismissed; nothing to
or a corporation. A mere recital of amend by: Benson v. Shines, 107
a seal is of course not sufficient. Ga. 406, 33 S. E. Rep. 439. In
Mayor v. Apel, 49 Mo. 190.

Stewart v. Hall, 106 Ga. 172, 32
22 In Fischer v. Hanna, 21 Colo. S. E. Rep. 14, it was held that
9, 39 Pac. Rep. 420, an appeal bond where the surety on an appeal bond
contained a recital that judgment was also surety on a replevin bond
had been entered against the ap- given in the same case and for the
pellants therein named for $5,- samo principal, “the appeal would
713.66, and obligated the sureties be dismissed for want of a valid
therein to pay such judgment in bond.” Citing Gordon v. Robert-
case of affirmance. Held, on motion son, 26 Ga. 410, and Eufala Insur-
to dismiss appeal, that the stat- ance Co. v. Plant, 36 Ga. 623. Each
utory condition could not be en- of which cases holds that where
forced against them when, as the surety on the appeal bond is
matter of fact, no such judgment already bound for the judgment ap-
had been entered against appel- pealed from, the bond is a nullity
lants, and appellants were not even and cannot be amended or addi.
parties to the suit, and that the tional sureties received. In Harv.
statute “can only apply where the ely v. Daly, 112 Ga, 822, 38 S. E.
party against whom the judgment is Rep. 41, the surety had been surety
rendered is the appellant.” Citing for the same principal in the same
Hall v. Pay Rock C. M. Co., 6 case on a bond to dissolve the gar-
Colo. 81. But where one having a nishment and judgment had al-
right to appeal makes the bond ready been entered against him
needlessly onerous it seems that upon that bond. Held, the appeal
he is bound by its terms. Johnson was a nullity.
v King, 91 Calif. 307, 27 Pac. Rep.

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