BABBITT v. FINN.

A., against whom a judgment in favor of B. was rendered in the District Court, sued out of the Circuit Court a writ of error which was a supersedeas, by his giving the requisite bond. The judgment having been affirmed, another bond for a supersedeas was executed and the cause removed here. The judgment of the Circuit Court was affirmed. The original judgment remaining unpaid, this action against the sureties to the first bond was brought. Held, 1. That their liability was fixed by the judgment of the Circuit Court, and was not diminished by the subsequent proceedings. 2. That they are not chargeable with the costs incurred by reason of those proceedings. 3. That the issue of an execution against A. was not essential to B.'s right to recover.

ERROR to the Circuit Court of the United States for the Eastern District of Missouri.

March 27, 1872, James C. Babbitt, assignee in bankruptcy of E. Miller, recovered, in the District Court of the United States for the Western District of Missouri, a judgment for $1,236.28, against Edward Burgess, who, on the 29th of that month, sued out of the Circuit Court a writ of error, and executed the requisite bond, with sureties, to render it a supersedeas.

This action was brought by Babbitt against John Finn and John Shields, who were such sureties. The breach assigned in the declaration is that "said Burgess did not prosecute said writ to effect, nor answer all or any damages or costs on failing to make good his said plea; but that said cause came on to be heard in said Circuit Court during the March Term, A.D. 1873; said Circuit Court, on the twenty-second day of March, 1873, ordered and adjudged that the said judgment of said District Court be, and the same was thereby, affirmed with costs;" "that afterwards the said record of said cause was taken from said Circuit Court to the Supreme Court of the United States on a writ of error; on the 25th of October, 1875, it was duly ordered and adjudged by said Supreme Court that the said judgment of said Circuit Court be, and the same was thereby, affirmed with costs, and that the said Babbitt, as such assignee, recover against the said Burgess $107.35 for his costs expended in said cause in said Supreme Court."

The declaration further alleges that said judgment of said

District Court is still in full force and effect, and is wholly unpaid and unsatisfied, &c.

The defendants filed a demurrer, which was overruled. They then answered, admitting the execution of the bond and the first judgment of affirmance, and setting up that Burgess subsequently gave a new supersedeas bond, and removed the case to this court, where the judgment of the Circuit Court was affirmed; and that by such second bond "the judgment of said Circuit Court was superseded, rendered inoperative, and vacated, and defendants were for ever released and discharged from any and all liability upon said bond sued on."

For a further defence, they averred that the plaintiff had not sued out an execution against Burgess, or pursued the sureties on the second bond, they being solvent.

To these affirmative defences the plaintiff demurred. His demurrer was overruled. The plaintiff then filed a replication, denying the new special matter set up. The court rendered judgment for the defendants. The plaintiff then removed the case here.

Mr. Nathaniel Myers for the plaintiff in error.

1. The admission in the answer of the execution and breach of the bond entitled the plaintiff to a judgment in his favor, on the pleadings, unless the special matter pleaded by the defendants constituted a valid defence.

2. The affirmance by the Circuit Court of the judgment of the District Court fixed the liability of the sureties, and was a breach of the condition to prosecute the writ of error with effect. Karthaus v. Owings, 6 Har. & J. (Md.) 134.

3. The second writ of error did not annul that affirmance, or discharge the sureties on the original supersedeas bond. Dolby V. Jones, 2 Dev. (N. C.) 109; Ashby v. Sharp, 1 Litt. (Ky.) 156; Jordan v. Agawam Woollen Co., 106 Mass. 571; Hinckley v. Kreitz, 58 N. Y. 583; Smith v. Falconer, 11 Hun (N. Y.), 481; Gillette v. Bullard, 20 Wall. 571; Smith v. Crouse, 24 Barb. (N. Y.) 433; Richardson v. Krapf, 5 Daly (N. Y.), 385; Rev. Stat., sect. 1000; Gardner v. Barney, 24 How. (N. Y.) Pr. 467; Robinson v. Plimpton, 25 N. Y. 484; Kellar v. Williams, 10 Bush (Ky.), 216; Brandenburg v. Flynn's Administrator, 12 B. Mon. (Ky.) 399; Patterson v. Pope, 5 Dana (Ky.), 241.

4. It was not necessary to sue out an execution against the original judgment debtor. Smith v. Ramsay, 6 Serg. & R. (Pa.) 573; Wood v. Derrickson et al., 1 Hill (N. Y.), 410; Tissot v. Darling, 9 Cal. 278; Smith v. Gaines, 93 U. S. 341; Brandt, Sureties, sect. 404.

Mr. Given Campbell, contra.

The only question for consideration is, Did the court err in rendering judgment in favor of the defendants? and it is submitted on their behalf that it did not. The new bond when the writ of error was sued out of this court operated as a supersedeas, and discharged the sureties on the bond given in the District Court.

Such a bond is intended to secure the payment of the judg ment, if the defendant fails in the Appellate Court. Rule 29, Sup. Court; Evans v. Hardwick, 1 J. J. Marsh. (Ky.) 435; Morris v. Barclay, &c., 3 id. 376; Moore v. Gorin, 2 Litt. (Ky.) 186; Sumrall et al. v. Reid, 2 Dana (Ky.), 65.

It is with this view that it is required to be in double the amount of that judgment. Shannon and Wife v. Spencer, 1 Blackf. (Ind.) 120; Norwood v. Martin, 3 Har. & John. (Md.) 199; Parker v. Hannibal & St. Jo Railroad Co., 44 Mo. 415.

This court must have had in view the fact that at common law, sureties were not liable beyond the court for which they stipulated, or the fourth and tenth rules in admiralty would not have been so carefully framed.

The judgment of the Circuit Court, so far as it affected the defendants as sureties on the first bond was vacated by the subsequent proceedings, Payne v. Cowan, 17 Pick. (Mass.) 142; and an action of debt could not be maintained upon it. Atkins v. Wyman, 45 Me. 399; Campbell v. Howard, 5 Mass. 376; Keen v. Turner, 13 id. 266; State of Ohio v. Commercial Bank of Cincinnati, 7 Ohio, 129; Clark Gale v. R. Butler, Jr., 35 Vt. 119.

The original bond was not given to secure the judgment of the Circuit Court when the cause was removed here. If that bond remained in force, another in double the amount of that judgment should not be required, as no additional security, except for costs, would be necessary to transfer the case here,

and stay proceedings during its pendency. Such is the course in many of the circuits, in admiralty appeals, where stipulations have been taken under rules 4 and 10.

After the second bond had been approved and a supersedeas allowed, the Circuit Court had no longer the judgment in its power. That bond stayed all proceedings, and precluded the first bondsmen from fulfilling the condition of their bond.

Where property seized on execution has been released upon a forthcoming bond, and before the day of sale mentioned in that bond an appeal is taken, a bond for its due prosecution discharges the sureties on the forthcoming bond.

A forthcoming bond discharges the lien arising from the levy of an execution. Brown v. Clark, 4 How. 4; Freeman, Judgments, sects. 380, 381.

The bond given for the release of an attachment discharges the property from the lien of that writ. St. Louis Perpetual Insurance Co. v. Ford, 11 Mo. 295; Suydam v. Huggeford, 23 Pick. (Mass.) 465.

In admiralty, a vessel libelled upon a lien claim is discharged from the lien when the requisite bond is delivered. The latter is a substituted security, taking the place of the vessel. A bond accepted by the court upon ordering the delivery to the claimant of property seized in admiralty is, in the subsequent proceedings, a substitute for the property. United States v. Ames, 99 U. S. 772. A second replevin bond given and accepted discharges the first. Chancellor v. Van Hook & Brooking, 2 B. Mon. (Ky.) 447.

These analogous cases are cited because authority upon the exact question under consideration is not abundant. It is elementary learning, however, that there are no presumptions against the defendants who, as sureties, have the right to stand upon the very letter of their contract. A change for their benefit without their consent releases them. Their obligation vanishes with that of their principal, and their undertaking was that he should be good for the judgment when rendered in the Circuit Court, and that if he did not pay it then, or otherwise indemnify and satisfy the plaintiff, they would do so for him. When he gave his bond for a writ of error and a superedeas to this court, he did indemnify the plaintiff to his satis

faction, and secured the debt evidenced by that judgment. In consideration of such indemnity and security, Burgess was allowed to have his cause heard here, and all proceedings to enforce the judgment were stayed.

It cannot be successfully contended that the defendants are to be regarded as sureties to the plaintiff for the solvency of the sureties on the subsequent bond, or for the continuing solvency of their principal. They might be willing to underwrite his solvency until his cause should be decided in the Circuit Court, but not for two years longer, when the action would be pending in this court.

Such an extension of their liability would be making a new and more onerous contract for them. It seems, therefore, that the bond for the writ of error from this court is substituted for that originally given, and exempts these defendants from liability.

MR. JUSTICE CLIFFORD delivered the opinion of the court. Notice to the opposite party is required in every case when a writ of error is sued out or an appeal is taken to remove a cause into an appellate court, except when the appeal is allowed in open court; and the provision is that every justice or judge signing the citation, except in certain cases not material to mention, shall take good and sufficient security that the plaintiff in error or appellant shall prosecute his writ or appeal to effect; and if he fail to make his plea good, that he shall answer all damages and costs where the writ is a supersedeas, or all costs only where it does not supersede the execution. Rev. Stat., sect. 1000.

It appears that the plaintiff as an assignee in bankruptcy recovered judgment in the District Court against Edward Burgess in the sum of $4,236.28 debt, and costs of suit. Exceptions were filed by the defendant, and he sued out a writ of error and removed the cause into the Circuit Court for the same district to reverse the judgment. Sureties to the bond were required to perfect the removal of the cause, and the defendants in the present suit signed the bond as sureties of the principal, who is the party that sued out the writ of

error.