#### Samuel Ford, plaintiff and appellant, *vs.*Samuel P. Townsend *et al.*defendants and respondents.

1. The modification of a judgment against one of several defendants person-, ally, upon appeal by striking out his personal liability alone forms no defense to an action upon a bond with sureties given by such defendants, conditioned for the payment of the amount of such judgment, whenever ordered by the final decision of the court, in pursuance of terms imposed by the court for its refusal to appoint a receiver of specific property upon which the judgment against the defendants had been declared to be a lien.

2. The voluntary act of the obligors in giving such a bond, under an order which *40affords the party his election to give it or not, waives all objection to the authority of the judge malting the order, to require such a bond.

(Before Bóswokth, Ch. J. and.MoNcuiBF and White, JJ.)

Heard May 7, 1863;

decided May 30, 1863.

This was an appeal from -a judgment in favor of the defendants, entered upon an order dismissing the complaint upon the trial before Mr. Justice Piebbepont, on the 4th of October, I860.-

The action was brought upon a penal bond given by the defendants in compliance with an order of court, made in a previous action against one of the defendants (Samuel Townsend) and two other persons, David and Turner, directing 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 $3100 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 was adjudged entitled to that relief, and a receiver was directed to be appointed in case executions 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, in which event 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. On appeal, the judgment in' the former action was- subsequently so far modified as to reverse it so far as it adjudged the defendant Townsend *personally*liable; but affirmed 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 *41therein 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 same. 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 any thing whatever to the plaintiff, or by any decision ordered either of the obligors to said bond to pay him any thing whatever, or that it has by any final decision ordered the defendants in said alleged action to pay him any thing, but averred that this court, by its final decision, rendered about October 17, 1857, in said action, upon an appeal duly taken, adjudged that said judgment was erroneous, 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 those respects .reversed.

It denied notice of the alleged final decision, and demand of payment; and claimed that the judgment first referred to in the complaint was not lawful. It also denied the right of the judge to order the giving the bond in suit, and charged that the same was given under duress.

On the trial of the action, a motion was made on the pleadings to dismiss the complaint, to the denial of which the defendants excepted.

This motion was renewed after the plaintiff had given his evidence and rested; and was then granted. To which exception was taken by the plaintiff’s counsel.

*W. W. Northrop,*for the plaintiff, appellant.

I. The justice erred in nonsuiting the plaintiff. 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,*95, 101 *to*104.) The defendants waived the right to question the *42plaintiff’s right to sue, by not setting up in their answer that he is not the real party in interest, *(Gode,*§ 148,) and are estopped from denying the matters recited in the bond executed by them. *(Greenl. Ev. vol.*1, § 26. *Sinclair*v. *Jackson,*8 *Cowen,*544, 586. *Jackson*v. *Harrington,*9 *id.*86, 128. *Jackson*v. *Brooks,*8 *Wend.*426, 434.)

II. The defendants’ 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 any 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 been 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 the defendants, respondents.

I. The complaint contained no cause of action, and should have been dismissed, when *first*asked for; and the order dismissing it, though afterwards made, should be affirmed, and it was properly dismissed, when finally moved for, after the court had given the plaintiff a full opportunity to attempt to make out a case. i

II. The action, if one existed, could only have been brought upon the penalty of the bond.

III. The bond was joint and not several. (1 *Shep. Touch.*375. *Ehle*v. *Purdy, 6 Wend.*629.) By suing the defendants jointly, the plaintiff has elected to treat the bond as a *joint*one; he could only proceed, had he made a different'election, against *each severally. (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.)

IY. 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. *43
      *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.)

*Y.*The condition of the bond is not broken. Sureties *are the favorites of the law, (Moore*v. *Paine,*12 *Wend.*126,) and their engagement can not 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 *John.*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. *Merricke,*2 *Saund.*403. 4 *Taunt.*593.)

VI. The complaint should have stated *specific*breaches for which the action is brought. (2 *R. S.*378. 7 *Wend.*345. 4 *id.*570. *Julliand*v. *Burgott,*11 *John.*6. *Drummond*v. *Husson,*4 *Kern.*60. *Nelson*v. *Bostwick,*5 *Hill,*37.)

VII. The promise *of performance*in the bond is joint, and not several. There is *but one thing to be done,*and there can be no severance in the action. *(Chit. Pl. 6th ed.*47. *Platt on Cov.*117. *Marshall*v. *Smith,*3 *Shep.*17.)

VIII. Bonds must be taken always most strongly in favor of the *obligor.*The *condition*is the language of the *obligee. (Per Baldwin, Ch. J. and Fitz Herbert, J. in Bold*v. *Molineux,*1 *Dyer,*14 *b.*17 *a. See also,*1 *Shep. Touch.*375, 376 ; *Powel on Contracts,*396, 397; *Laughter’s Case,*5 *Rep.*22.)

IX. The *liability*of a surety can not be more than that of the principal, 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 final decision of the general term. The absurd idea is nevertheless now advanced of malting him liable.

X. A liability can only be incurred in the mode provided, *(Drummond*v. *Husson, 4 Kern.*60; *Bulkley*v. *Lord,*2 *Starkie,*406,) and no such liability has arisen here.

XI. The judge had no legal right to require any such bond to be given. It is therefore void. *(U. S.*v. *Hipkin,*2 *Hall’s*
      *44
      *Am. Law Jour.*80.) This question can be raised collaterally. *(Broadhead*v. *McConnell, 3 Barb.*175.)

XII. A bond may be discharged by parol. *(Dearborn*v. *Cross,*7 *Cowen,*48.) That this was discharged, or never meant to be availed of, is clear, from the fact that the order directing it to be given, was never made part of the judgment roll. .

XIII. The complaint does not aver the bond to be sealed. This was necessary. *(Van Santvoord*v. *Sandford,*12 *John.*197. *Macomb*v. *Thompson,*14 *id.*207. *Stanton*v. *Camp,*4 *Barb.*274.)

XIV. Where a number of defendants are named as joint defendants, the trial record must show all the parties to be before the court. Until then the action is in no condition to be tried.

XV. A condition precedent to any possible liability of the 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. The plaintiff could never recover unless he had averred and proved performance of this condition fully. *(Oakley*v. *Morton,*1 *Kern.*25.) This point was put in issue by the answer.

XVI. 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. Of these obligors, only S. P. Townsend was 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 inoperative, 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 can not 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 *45bond would have said so. By no latitude of construction can any such meaning be given to it. *(See also Wells*v. *Baldwin,*18 *John.*45.)

XVII. 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, *DeBevorse,*8 *How. Pr.*159.)

XVIII. 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. *That*judgment discharged Townsend altogether, and by modifying and changing the judgment which was originally given, must be construed as discharging the *order*of December, 17, and every thing else connected with it which at all affected or modified it, including, of course, the bond given under that order.

XIX. 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, &c. taken by the defendants upon the trial, can not be considered upon this appeal. “ The rule is to examine the decisions made by the (circuit) judge *against*the party who has lost the verdict, and to grant or refuse a new trial according as w;e find them erroneous or otherwise.” *(Elsey*v. *Metcalf,*1 *Denio,*323. *Rogers*v. *Murray,*3*Bosw. 357.)*

It remains, therefore, only to be considered whether the facts adduced upon the trial, assuming them to be undisputed, would entitle the plaintiff to a judgment in his favor P Did the proofs upon which 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, *46made a certain judgment or decree, wherein and whereby it was adjudged, “ That the plaintiff do recover the sum of $3586, as well from the defendant Henry I. David, as from the defendant Don M. M. Turner, and from the defendant Samnel 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,) -s * * and that the plaintiff have execution against the defendants David, Turner and Townsend, severally, for such amount.” And *“*that the plaintiff *is entitled to,*and * * *has an equitable lien*upon, the fixtures 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 that a *receiver*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 $3566.57, and the interest thereon, until the same be paid.”

It also appears that on the 17th day of December, 1856, 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 $5000, conditioned to pay to the plaintiff the sum of $3100, with interest and costs, or that a 1 receiver be 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 the owners of the said leases, furniture and fixtures, may do what they choose with the same, *and that the plaintiff’s lien thereon” should cease.*

Thereupon, and on the 18th day of December, 1856, a bond was executed by the defendants, 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 Tappan Townsend, *47of the city of Brooklyn, and Thomas Wilbur, of the city of Brooklyn, are held and firmly bound unto Samuel Ford, of the city of Hew York, in the penal sum of $5000, lawful money, of the United States. For which payment well and truly to 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. Murray 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, T. 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 $3566.57, together with certain costs, amounting in the whole to a sum not exceeding $4300, 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 Hos. 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 ord'er, or judgment; and whereas the said Ford did, on the 16th day of December, 1856, apply to the said justice, the Hon. Murray Hoffman, 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 17th 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 ip. the sum of $5000, *conditioned*
      *48to pay the amount of *said*recovery, as by said "order will more fully appear, reference being thereunto had. '

Now 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 Eord, 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 this 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. Samuel P. Townsend, [l. s.]

Tappen Townsend, [l, s.]

Thomas Wilbub, [l. l.]

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

An appeal was taken from the judgment pronounced on the - first Monday of March, 1856, to the general term of this court, and thereafter and in the month of October, 1857, the General Term rendered its decision, affirming the before recited portions of the judgment given- by the court at the Special Term, held on the first 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 presented at the general term,) that the proceedings for the appointment of a receiver be perfected, and the property *be sold*by the receiver.

This action was brought upon such bond, averring in the complaint therein the facts herein before stated.

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 *49the 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 defendants, in this action.

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 by a breach of the condition of the bond upon which the action is brought. 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, and other property, and was conditioned “to 'pay the amount of said recovery,” being a personal judgment against David Turner and' Samuel P. Townsend, for the sum of $3566.57. Upon the delivery of this bond, the equitable lien, injunction and order for receiver were discharged. The court, by its final decision at the general term, in the month of October, 1867, ordered “the sum awarded to be due to the present plaintiff by the judgment at Special Term, and all costs and charges 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 and other articles, 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 should be appointed forthwith, upon which the counsel for the defendant S. P. Townsend were heard, 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 was discharged. That order never was appealed from. The execution and delivery of the bond to *50the 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 he reversed, and a new trial granted, with costs to abide the event.