to execute] a sufficient deed of conveyance of the said property to the defendant, on payment of the said sum, and still is ready and willing to execute the same.

III. That the defendant has not paid the said sum. [Demand of Judgment.]

16. Execute.. "Execute" implies delivery: Lafayette Insurance Co. v. Rogers, 30 Barb. 491; Hook v. White, 36 Cal. 299. It also implies subscription: Cheney v. Cook, 7 Wis. 413. That an allegation of readiness and willingness is necessary, see Beecher v. Conradt, 13 N. Y. 110.

CHAPTER IX.

UPON UNDERTAKINGS, BONDS, ETC.

No. 305.

i. Short Form-On Undertakings given in Actions. [TITLE.]

The plaintiff complains, and alleges:

I. That on the..... day of... 187, at

....."

the defendant made an undertaking, a copy of which is hereto annexed as a part of this complaint, marked "Exhibit A."

II. That thereafter, at

judgment was duly

given in the action therein mentioned against the [plaintiff]

to the Sheriff of said county, which was, on the 187., returned wholly unsatisfied.

day of.....

[Demand of Judgment.]

[Annex Copy of Undertaking.]

1. Action on Undertaking.-If a provisional remedy has been allowed in an action, and the action be dismissed, or a judgment of nonsuit entered, the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereon; See Code C. P., sec. 581. Upon a bail bond for the appearance of a person arrested in proceeedings for contempt, if the undertaking be prosecuted, the measure of damages in the action is the extent of the loss or injury sustained by the aggrieved party by reason of the misconduct for which the warrant was issued, and the costs of the proceeding: Code C. P., sec. 1220. Upon any undertaking in attachment given in pursuance f section 540 or 555, Code C. P., suit may be commenced

if an execution upon the judgment be returned unsatisfied, in whole or in part; or he may proceed, as in other cases, upon the return of an execution.

2. Averments. In an action upon an undertaking given on appeal from the judgment of a district court for the possession of real estate, for costs and damages, and for the value of the use and occupation of the premises, it is not necessary to aver in the complaint that the district court had jurisdiction to render the judgment appealed from: Murdock v. Brooks, 38 Cal. 596. Nor is it necessary to allege that the undertaking had the effect to stay the execution of the judgment, if it appears therein that proceedings for the execution of the judgment were never taken: Id. If a copy of the undertaking be set out in the body of the complaint, it will be taken and considered as a part thereof: Id. A complaint, in such case, is not defective because it contains no averment that an execution had been issued and returned unsatisfied, or because no demand for payment is alleged to have been made on the principal: Id. Nor is it necessary to allege that the plaintiff in the judgment was entitled to the possession of the premises pending the appeal: Id. A complaint against the obligors in an undertaking given on an arrest under section 182, N. Y. Code, must show the recovery of a judgment in the action wherein it was given, by the defendant therein. An allegation of the discontinuance of such action is not sufficient: Moses v. Waterbury Button Co., 37 N. Y. Supr. (5 J. & Sp.) 393.

3. Breaches and Damages. Taking all our statutes together, the obvious design was to put an undertaking on the same footing as a bond: Canfield v. Butes, 13 Cal. 606. Special breaches should be assigned in all cases: Western Bk. v. Sherwood, 29 Barb. 383. Where the condition of a bond is to pay the debt of another, the condition operates merely by way of defeasance. A bond should be sued on, setting out breaches and damages: Baker v. Cornwall, 4 Cal. 15; Postmaster-General v. Cross, 4 Wash. C. Ct. 326. It is in general sufficient to allege the breach in the terms of the condition of the bond: See Berger v. Williams, 4 McLean, 577. A declaration on a bond given to prosecute with effect a writ of replevin, where the breach assigned is, "that the suit was not prosecuted with effect," is sufficient: Gorman v. Lenox, 15 Pet. 115. The non-payment of a judgmeut obtained against the administrator, may be assigned as a breach of the condition of such bond: People v. Dunlap, 13 Johns. 437; see Frankel v. Stern, 44 Cal. 168, as to measure of damages.

4. Conditions.-Where the bond was not upon the record, and the complaint did not specify the conditions, it was held insufficient: Woods v. Rainey, 15 Mo. 484.

5. Construction. -An undertaking on attachment is an original, independent contract on the part of the sureties, and must be construed in connection with the statute which authorizes it: Frankel v. Stern, 44 Cal. 168. If a word is omitted by mistake, and by looking at the whole undertaking and the statute it is apparent what word was intended to have been inserted, the omitted word may be supplied, and the contract read as if it had been expressed, without first reforming it by supplying the omitted word: Id.

6. Consideration. Where it appears that the instrument was given in pursuance of a statute requirement, in a form prescribed thereby, and in a case within the statute, those facts constitute a sufficient consideration to support it, though it be without seal, and no further averment of considera

tion is necessary: Slack v. Heath, 4 E. D. Smith, 95; S. C., 1 Abb. Pr. 331. The complaint, by averring that it was sealed, imports a consideration; it is not necessary that it should also show that it was within the statute: Clark v. Thorp, 2 Bosw. 680. An undertaking executed by a sheriff before releasing property which he has ascertained to be exempt from execution, is void for want of consideration: Servanti v. Lusk, 43 Cal. 238.

7. Defective Undertaking.-If an undertaking has been executed to the defendant by a wrong name, the latter has his remedy, and may describe it as given to him, and may show that he was the party intended: Morgan v. Thrift, 2 Cal. 563. Where a mere defective undertaking has been bona fide given, and the party will file a good one before the case is submitted, the court should permit him to do so: Coulter v. Stark, 7 Cal. 244; Cunningham v. Hopkins, 8 Id. 33.

8. Demand.-Demand upon the principal is necessary: Nelson v. Bostwick, 5 Hill, 37. But a demand upon the defendant is unnecessary: Ernst v. Bartle, 1 Johns. Cas. 319. But if a demand is necessary by the special terms of the undertaking, it should be averred.

9. Description of Instrument.-A complaint, in an action upon a statutory undertaking, which contains no other description of the instrument than an allegation that it corresponds with the provisions of a certain section of the Practice Act, is defective. The defect, however, being of form rather than of substance, objection to it must be taken by demurrer to the complaint: Mills v. Gleason, 21 Cal. 274.

10. Estoppel.-In an action for use and occupation, upon an undertaking on appeal, the defendants are estopped from denying that the defendant in the judgment was in the possession at the time he took his appeal and gave the undertaking: Murdock v. Brooks, 38 Cal. 596.

11. Execution Averred.-If execution be issued in a county other than that where judgment was rendered, it may be averred as follows: That on, etc., a transcript of said judgment was duly filed in the office of the clerk of the District Court of the...... judicial district, in the county of......, and on the same day an execution thereon was issued to the sheriff of said county, which has been returned wholly unsatisfied.

12. Justification.-"In all cases where an undertaking, with sureties, is required by the provisions of this Code, the officer taking the same must require the sureties to accompany it with an affidavit that they are each residents and householders or freeholders within the State, and are each worth the sum specified in the undertaking, over and above all their just debts and liabilities, exclusive of property exempt from execution; but when the amount specified in the undertaking exceeds three thousand dollars, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth amounts less than that expressed in the undertaking, if the whole amount be equivalent to that of two sufficient sureties:" Code C. P., sec. 1057.

No. 306.

ii. On an Undertaking for Costs of Appeal.

187., judgment was Judicial State afore

[TITLE.] The plaintiff complains, and alleges: I. That on the .... day of....... rendered by the District Court of the District, of the City and County of said, in favor of the above-named plaintiffs, against one C. D., for the sum of. . . . . . . . dollars; and that on the .... day of ... 187., the said C. D. appealed to the Supreme Court of said State from the said judgment.

II. That upon said appeal, the defendants made and filed with the clerk of said court, for the use of these plaintiffs, their written undertaking and justification therein, of which the following is a copy [copy undertaking].

III. That on the ....... day of .....

187.,

the judgment appealed from was by the said Supreme Court affirmed, and the sum of .... .... dollars, costs and damages on the appeal, was awarded against the appellant. IV. That he has not paid the same.

[Demand of Judgment.]

13. Action by Assignee.-To enable the assignee of a judgment to sue on the appeal bond, he must have an assignment of the bond: Moses v. Thorne, 6 Cal. 87. An assignment which purports to transfer to the assignee all the right, title and interest of the assignor in the undertaking, “and in the amount thereby secured," is broad enough to enable the assignee to recover for use and occupation, pending the appeal, and costs: Murdock v. Brooks, 38 Cal. 596.

14. Appeal Dismissed.—Where an appeal is taken to the Supreme Court from a judgment, by filing notice of appeal and undertaking, and the appeal is afterwards dismissed by the Supreme Court for failure of the appellant to send up a transcript, the sureties are liable on the undertaking on appeal: Ellis v. Hull, 23 Cal. 160. Where an appeal is withdrawn or dismissed by consent of both parties, without being called to a final hearing, no action can be maintained on the appeal bond: Osborn v. Hendrickson, 6 Cal. 175. Where an appeal is dismissed on motion of respondent, based on written consent of the appellant, the dismissal operates as an affirmance of the judgment, and charges the sureties on the undertaking on appeal: Chase v. Beraud, 29 Cal. 138.

15. Delivery. In an action on an undertaking on appeal, it is a sufficient averment of the delivery of the undertaking, if the complaint show that it was filed in the clerk's office: Holmes v. Ohm, 23 Cal. 268.

16. Execution, Issue of.-An averment in the complaint in a suit on an appeal bond, that execution had been issued on the judgment and re

turned unsatisfied, is unnecessary. The non-payment of the judgment can be shown without issuing an execution: Tissot and Wife v. Darling, 9 Cal. 278.

17. Frivolous Appeal.-Damages for a frivolous appeal cannot be recovered in an action upon the undertaking on appeal, unless they have been specially awarded by the appellate court: Hathaway v. Davis, 33 Cal. 161.

18. Judgment.-It need not be alleged that the judgment was final: Sutherland v. Phelps, 22 Ill. 91.

19. Judgment Reversed.-Where an appeal bond was conditioned to pay the judgment appealed from, if the same should be affirmed, and it appeared that the judgment appealed from was reversed, the conditions of such bond were not broken, and no action would lie thereon: Chase v. Ries, 10 Cal. 517.

20. Judgment Affirmed.-Under the usual undertaking on appeal, if the judgment be affirmed, the liability of the surety accrues only after an affirmance upon that appeal of the then existing judgment. An interlocutory order of affirmance, reserving leave to answer and litigate further, followed by new pleadings and a new judgment upon the new issue, does not render the sureties liable: Poppenhusen v. Seeley, 3 Keyes, 150. An undertaking or bond was construed to relate only to an action pending against the obligees at the time when it was given: Beach v. Endress, 51 Barb. 570.

21. Liability of Sureties.-The sureties on an undertaking are entitled to stand on the precise terms of the contract, and there is no way of extending their liability beyond the stipulation to which they have chosen to bind themselves: Tarpey v. Schillenberger, 10 Cal. 390. And a judgment against the principal is conclusive against the surety: Pico v. Webster, 14 Cal. 202. But an undertaking on appeal conditioned for the payment of what the judg meut creditor has no legal right to receive, is not, as to such condition, binding upon the sureties: Whitney v. Allen, 21 Cal. 233. The sureties on an appeal bond cannot be sued until the judgment against their principal is in a condition to be enforced by execution: Parnell v. Hancock, 48 Cal. 452. So long as there is an order of court in force, staying execution on the judgment, against a party who had appealed from a lower court, the sureties on the appeal bond cannot be sued: Id.

22. Made and Filed.-That the averment in the second allegation of the above form, that the defendants made and filed, etc., is sufficient: 6Bbons v. Berhard, 3 Bosw. 635; but compare Pevey v. Sleight, 1 Wend. 518.

23. Parties. Where defendant executed an undertaking on appeal, to husband and wife plaintiffs, an action on the undertaking may be maintained in the name of husband and wife: Tissot v. Darling, 9 Cal. 278.

24. Rights of Surety. Whenever any surety on an undertaking on appeal, executed to stay proceedings on a money judgment, pays the judgment, either with or without action, after its affirmation by the appellate court, he is substituted to the rights of the judgment creditor, and is entitled to control, enforce, and satisfy such judgment in all respects as if he had recovered the same: Code C. P., sec. 1059.