be had against them on motion.29 In an action of forcible entry and detainer, however, it is held that a summary judgment cannot be rendered against the surety on the appeal bond, as in ordinary cases of appeal from justices.30 Where a demand is necessary to fix the liability of sureties to an undertaking, it is held to be a part of the contract, and must therefore be made before action and be averred in the complaint.31 The breach of the contract must also be averred.32 The burden of proving that a surety on a judicial bond is solvent, and good for the amount of the bond, is held to be on the person tendering such surety.33 Where the judgment against the principal is greater than the penalty of the bond, the principal cannot complain because judgment is entered against the sureties for the full amount of the judgment against him.34 § 535. Pleading and evidence continued-Estoppel-Conditional delivery. It is held that a plea of non damnificatus is insufficient in an action on an appeal bond where the bond is conditioned for the payment of a specified sum of money for track rent pending an appeal. "Such a plea," said the court, "is good only when the condition of the covenant is, in general terms, to indemnify and save harmless. When, as here, the covenant is for the payment of specified sums of money, such a plea is not good as against a declaration which assigns as for a breach of the covenant the failure to pay the specified sums of money." 35 In suit upon an appeal bond in a forcible detainer suit it has been held sufficient to offer in evidence a 30 Gray v. Dryden, 79 Mo. 106. To similar effect, see Gruenewald v. Schaales, 17 Mo. App. 324. 29 Oakley v. Van Nopper, 100 N. gave an appeal bond in $320 and in C. 287. the circuit court, judgment was entered against him and against the sureties for $364. The sureties did not appeal from this judgment. Held, that “judgments, though erroneous as to parties who do not appeal, will not be reversed upon the appeal of a party as to whom there is no error. 31 Morgan v. Menzies, 65 Cal. 243. 32 Morgan v. Menzies, 60 Cal. 341. For a case in which a declaration on an appeal bond was held demurrable sce Daggett v. Mensch, 141 Ill. 395, 31 N. E. Rep. 153, affg. 41 Ill. App. 403. 35 Terre Haute, etc., R. R. Co. v. Peoria, etc., Ry. Co., 182 III. 501, 33 State ex rel Holyland v. Judge, 503. Same case below: 81 Ill. App. 35 La. Ann. 737. 435, 444. See, also, Fenton v. Farmers' & Merchants' Bank, Tex. Civ. 34 In Hurley v. Bevens, 57 Ark. 547, 22 S. W. Rep. 172, appellart App., Nov., 1901, 65 S. W. Rep. 199. certified copy of the judgment upon appeal alone without the rest of the record.36 Scire facias on an appeal bond to bring in sureties, being a common law remedy, it is held that no statute is needed to authorize it after default.37 In Illinois an appeal bond is construed as a voluntary obligation "and the party entering into it is estopped from denying that he is liable to the extent that the words bind him when strictly construed." 38 Where an appeal bond is delivered conditionally and the condition is not performed the surety is ordinarily not liable but the mere fact that the bond recites the names of parties as sureties who do not sign it is by no means conclusive. evidence of conditional delivery.39 Where the appeal bond is joint and several any surety may be sued alone without joining the others.40 § 536. Surety on appeal bond may purchase or take an assignment of judgment-When surety may recover indemnity for payment of judgment Other cases.-A surety on the appeal bond of an executor in an action begun during the testator's life, where the judgment had been affirmed against the executor, may purchase the same in the name of another and have an order for the sale of realty to pay the same.41 In the defense of an action commenced in the lifetime of the deceased for a debt then in existence, his administrator gave an appeal bond with surety. Subsequently the surety paid the judgment 36 Rehm v. Halverson, 197 Ill. 378, 64 N. E. Rep. 388, affirming 94 Ill. App. 627. 37 Straus v. Oltusky, 62 Ill. App. 660, following Sans v. People, 3 Gilman (Ill.) 327, where the nature of the writ is explained. 88 Terre Haute R. R. Co. v. Peoria Ry. Co., 81 Ill. App. 435, 451. 39 In Byers v. Gilmore, 10 Colo. App. 79, 50 Pac. Rep. 370, the appeal bond of a corporation failed to recite the date of the judgment appealed from and contained the names of two men as sureties who did not sign it. It was delivered to the clerk but there was no evidence that appellee ever saw it until after affirmance of the judgment appealed from and there was no evidence that the surety who signed had any understanding with the two proposed sureties who failed to sign except his statement that they had agreed to stand by him in the litigation. Held, that the surety was liable. Compare Bennett v. Superior Court, 113 Calif. 440, 45 Pac. Rep. 808, where an appeal was dismissed because the appeal bond was signed by one as surety whose name was not recited as such in the bond. 40 Wilson v. Welch, 8 Colo. App. 210. 41 Ferguson v. Carson, 13 Mo. App. 29, affirmed 86 Mo. 673. See, however, Maybury v. Grady, 67 Ala. 147. and took an assignment of the same and presented his claim against the estate. Held, that when the surety paid the debt it did not lose its character of a debt against the estate, and therefore was not within the rule prohibiting the allowance of any claim against the estate not in existence at the time of the death of the deceased.42 On payment by a surety of a judgment he becomes entitled to the rights of the creditor on the appeal bond, where the principal alone appeals,43 and equity will not enjoin him from collecting from his principal, because the latter's attorneys neglected their duty in attending to the principal's case, the principal being sick at the time.11 A judgment will not be permitted against a surety on an appeal bond where the court refused to accept the bond and denied the existence of the appeal.45 There is held to be no distinction between the extent of the liability of the principal and surety in an appeal bond.46 § 537. Miscellaneous cases as to liability of sureties on appeal bonds. A party signed an appeal bond where there was no legal order showing an appeal. Held, he was not bound. Without an order allowing an appeal, the clerk had no authority to take the bond.1 An appeal bond provided that the appellant should prosecute his appeal and satisfy whatever judgment should be rendered against him. He did not prosecute his appeal, and for that reason no judgment was rendered against him in the court above. Held, the surety in the bond was liable, because no appeal had been prosecuted, and that was a breach of the bond.2 An appeal was dismissed by the supreme court because no transcript had been filed. It was contended by the sureties on the appeal bond that the consideration of the bond had failed because no appeal had been 42 Ferguson's Adm'r v. Carson's Adm'r, 86 Mo. 673, affirming 13 Mo. App. 29. See, however, Maybury v. Grady, 67 Ala. 147. 2 Champomier v. Washington, 2 La. Ann. 1013. And where, during the interval between an appeal and a dismissal of the same for want of 43 Briggs v. Hinton, 14 B. J. Lea prosecution, the principal became in(Tenn.) 233. 44 Odell 7. Mundy, 59 Ga. 641. 45 State v. Cook, 31 Mo. App. 57. 46 Crane v. Andrews, 10 Col. 265. 1 And it was therefore ineffective and without consideration: Sears v. Bearsh, 7 La. Ann. 539. solvent, it was held that the sureties on the appeal bond were liable for the full amount of the judgment against their principal at the date of the bond, together with interest and costs of suit on the bond. Trent v. Rhomberg, 66 Tex. 249. taken. Held, an appeal had been taken and dismissed, and the sureties were liable. An appeal bond provided that the appellant should prosecute his appeal and pay "whatever judgment" should be rendered against him. The judgment was in part reversed, and the supreme court rendered a judgment for part of the judgment below. Held, the sureties on the bond were liable for this judgment. An appeal bond recited that the judgment below was for a smaller sum than the actual amount of the judgment. Held, the sureties on the bond were only liable for the sum recited as the amount of the judgment. It is not necessary, in order to charge the sureties on an appeal bond, that an execution on the judgment appealed from should be issued against the principal. Sureties on an 3 Ellis v. Hull, 23 Cal. 160. To like effect, see Thalheimer v. Crom, 13 Col. 397. ♦ Diamond v. Petit, 3 La. Ann. 37; Holmes v. Steamer Belle Air, 5 La. Ann. 523. the circuit court and before any execution was sued out and without taking any proceedings to sell certain lands equal in value to the judgment that had been attached and were still subject to the lien of the 5 Jenkins v. Skillern, 5 Yerg. judgment. It was held that the suit (Tenn.) 288. • Anderson v. Sloan, 1 Col. 484. Holding that sureties who sign an appeal bond are liable, although their names do not appear in the body of it, see Cooke v. Crawford, 1 Tex. 9. Holding that a surety on an appeal bond is not liable for damages assessed on dismissing the appeal, see Raney v. Baron, Adm'r, 1 Fla. 327. Sureties for the payment of a judgment are not discharged by the fact that the judgment is appealed from, and other sureties given for the appeal. Smith v. Falconer, 11 Hun (N. Y.) 481. For further cases involving sureties' liability on appeal bond, see Ringleberg v. Peterson, 76 Mich. 107; Hopkins v. Orr, 124 U. S. 510; Wood v. Orford, 56 Cal. 157. In Davis v. Patrick, 57 Fed. Rep. 909, 6 C. C. A. 632, 12 U. S. App. 629, suit was begun on a supersedeas bond as soon as the mandate of the U. S. supreme court showing its affirmance was filed in was not premature, that the affirmance of the judgment was conclusive that the writ of error had not been prosecuted with effect. Citing Babbitt v. Finn, 101 U. S. 7, 13. In Gordon v. Third Nat'l Bank, 56 Fed. Rep. 790, 6 C. C. A. 125, 13 U. S. App. 554, affirming 53 Fed. Rep. 471, it was held that upon the mandate of affirmance by the United States supreme court. being filed in the U. S. Circuit court for a district in Alabama, a summary judgment might be entered at once against the sureties on the supersedeas bond in conformity to the practice followed in the state courts of Alabama. That after affirmance of the judgment appealed from, the obligee need not wait a moment before suing: Fuller v. Aylesworth, 75 Fed. Rep. 694, 21 C. C. A. 505, at 513, 43 U. S. App. 657; Babbitt v. Finn, 101 U. S. 7; Davis v. Patrick, 12 U. S. App. 629, 6 C. C. A. 632, 57 Fed. Rep. 909. appeal bond are held not released because of plaintiff's delay in bringing suit. So they are, also, held not released because of the principal's arrest under an execution, or by his imprisonment and discharge.8 § 538. Liability of sureties on forthcoming, claim delivery and release bonds Judgment Amendment of pleadings, effect of. Judgment cannot be rendered on mere motion. or on trial of main case against the sureties on a forthcoming bond. But where the parties in an action of claim and delivery compromised, and agreed upon a judgment that plaintiff should pay defendant a certain sum and costs, it was held such judgment was binding on plaintiff's sureties, and summary judgment might be entered against them.10 The liability of sureties on a release bond is held to be measured by the value of the property sequestered, which they bound themselves to return, and not by the amount of the judgment rendered in the case in which the bond was given.11 In an action against a surety on an undertaking given to release property from an attachment issued against two partners, it was held that a subsequent amendment of the summons and complaint, so as to reach a third partner, did not discharge the sureties.12 Nor was the surety held discharged because of a change in the ad damnum of the writ.13 Where the principal in a forthcoming bond returns only part of the property he is entitled to credit only for what it brings at the execution sale.14 7 Quillen v. Quigley, 14 Nev. 215. 8 Prusia v. Brown, 45 Hun (N. Y.) 80. 9 Clary & Whaley v. Haines, 61 Ga. 520. But under Arkansas statute sureties on a delivery bond become subject to summary judgment without notice or service of process. Fletcher v. Menken, 37 Ark. 206. 10 Council v. Averett, 90 N. C. 168. 11 Carroll Co. v. Hamilton, 30 La. Ann. 520; Baker v. Morrison, 4 La. Ann. 372. In Fletcher v. Menken, 37 Ark. 206, it is held, though under statute, that the judgment against the sureties on a forthcoming bond must be for the value of the property as found by the court or jury trying the case, and not the value fixed by the appraisers taking the bond. In Klinkert v. Fulton Storage & Mercantile Co., Wis., Mch., 1902, 89 N. W. Rep. 507, it was held that the liability of the sureties to a successful intervening petitioner is the value of the property and interest thereon, not the value of its use besides. See, also, Quinnipiac Brewing Co. v. Hackbarth, Conn., Jany., 1902, 50 Atl. Rep. 1023. 12 Christal v. Kelly, 24 Hun (N. Y.) 155. 18 Townsend Nat. Bank v. Jones, 151 Mass. 454. 14 In Wilcox & Gibbs Guano Co. v. Piedmont Lumber Co., 98 Ala. 281, |