N. Y. Common Pleas.-Ward, &c. v. Syme, Wordsworth and Mason.

withhold from the plaintiff the opportunity of obviating the objection if he wishes to.

I shall therefore allow a second commission to be sent, to examine the same witnesses on the same interrogatories as before, with liberty to the defendant to put fresh cross-interrogatories as he may be advised, the plaintiffs to pay $20 costs of opposing this motion, and the commission not to operate as a stay of proceedings.

N. P. Common Pleas.

[April and July Terms, 1849.]

Before Justices ULSHOEFFER, INGRAHAM and DALY.

MATTHIAS B. WARD, survivor of MATTHIAS B. WARD, and WILLIAM GOADBY, V. JAMES SYME, WILLIAM WORDSWORTH and MICHAEL P. MASON.

A bond given to prosecute a writ of error issuing out of a court of the Supreme Court to a Court of Common Pleas, when by law such writ can only issue out of the Court of Ap peals, is absolutely void, and no action can be maintained upon it. Per Ulshoeffer and Daly, judges.

Ingraham, Judge, dissented, holding that upon the principle of Bowne et al. v. Muller, 6th Hill, 496, the defendants were estopped from setting up the defence.

An exception entered to the sufficiency of sureties given on the issuing of a writ of error discharges them from all liability on the bond.

A bond given to M. B. W., as survivor of M. B. W. and W. G., is a substitute for a bond given to M. B. W. and W. G., the latter being dead at the time of the execution of the first bond. Per Ulshoeffer, Judge.

An order vacating an order superseding a writ of error may be given in evidence, although made after the commencement of an action founded on the order superseding the writ of

error.

This was action of a debt on bond, dated May 6th, 1848, given by the defendants to Matthias B. Ward and William Goadby as obligees, on the issuing of a writ of error out of the Supreme Court of the state of New-York to this Court on that day, and returnable on the first Monday of July then next. The breaches assigned were,

1st. That the plaintiff in error had failed to prosecute the writ according to the exigency of the bond, but wholly failed, and made default.

2nd. That on the 7th of June, 1848, the said writ of error was superseded, quashed and discontinued.

3d. That the plaintiff in error had not paid or satisfied the damages and costs recovered by the judgment mentioned in the condition of the bond and the recitation thereof, nor the costs of defending, superseding, quashing and discontinuing said writ of error, or any part thereof.

The defendants severally pleaded non est factum, and gave notice of special matter. The cause was tried on the twelfth day of Feb

N. Y. Common Pleas.-Ward, &c. v. Syme, Wordsworth and Mason.

ruary, 1849, before the honorable Michael Ulshoeffer, first judge. The plaintiff read in evidence the bond declared on, and endorsed thereon as follows:

I except to the sufficiency of the within mentioned sureties. E. C. GRAY, Att'y. Defendants' attorney admitted service of notice of such exception', May 24th, 1848, on attorney for plaintiff in error.

Plaintiffs also read in evidence order made by Justice H. P. Edwards, of the Supreme Court, dated June 7th, 1848, superseding the writ of error, also a taxed bill of costs of $10 56, taxed by Justice Hurlbut on superseding said writ of error, and rested.

Defendants read the writ of error tested the 6th of May, 1848, and returnable before the justices of the Supreme Court of Judicature, on the first Monday of July, (then) next. The allowance of the same by James Conner, clerk, with a stay of proceedings on execution, &c. It was admitted by both parties that William Goadby, named in the bond and writ, died on the 6th of April, 1848, and that the plaintiff in error knew of his death previous to issuing said writ of error.

Plaintiff's attorney admitted that notice of the issuing of said writ of error, and of the filing of same, and bond sued was served on the attorney for the plaintiffs in the suit intended to be removed by said writ of error, May 15th, 1848. Defendants' attorney also read in evidence a bond dated 29th of May, 1848, of James Syme, Amos Johnson and William Wordsworth, the latter being sureties, for the prosecution of said writ of error. This bond was made payable to Matthias B. Ward as the survivor of Matthias B. Ward, and William Goadby as obligee therein, and was with affidavits of the justification of the sureties therein, filed in the clerk's office on the first of June, 1848, and notice thereof, and a copy of said affidavits served on the attorney for the defendants in error, June 3d, 1848. Defendants' counsel read in evidence an order of Justice Edwards, dated 8th of June, 1848, vacating the order made by him on the 7th of June, 1848, superseding the writ of error.

The testimony here closed on both sides, and the defendants' counsel moved for a non-suit, which his honor, the presiding judge, granted.

The plaintiff's counsel, on a bill of exceptions, moved for a new trial, which was argued at the March general term, 1849, before Judges Ulshoeffer and Daly, and the same was again re-argued before all the judges, at the May general term, 1849.

E. C. Gray, for the plaintiff, submitted the following points:

I. Section 3d of article 6th of the Constitution declares that there shall be a Supreme Court having general jurisdiction in law and equity; the third section of the act of the legislature passed 14th December, 1847. Laws of 1847, p. 639, as amended by the act passed April 11th, 1848. Session laws of 1848, p. 334, wholly de

N. Y. Common Pleas.-Ward v. Syme, Wordsworth and Mason.

prives the Supreme Court of its right to review on error the judgments of this court, and it is therefore unconstitutional for repugnance to the constitution. The legislature had authority to say that writs of error might issue from the Court of Appeals direct to this Court, but they possess no constitutional power beyond. 19 Johns. 58.

II. The bond is not void by statute. Vandusen v. Hayward, 17 Wend. 67; 2 Lord Raym. 1459; Mitchell v. Thorp, 5 Wend. 288; it was not taken colore officii, Ring v. Gibbs, 29 Wend. 510, but it was taken for the benefit of the defendants named in the writ of error as security, and to cover their costs of defending the writ.

A void writ may be quashed, 19 Wend. 623, and of consequence the bond given, on issuing a void writ of error, is good because its condition is broken when the writ is quashed.

Having been voluntarily executed, its validity did not depend on the lawfulness of the writ of error. Flagg v. Tyler, 3 Mass. 304; Pevy v. Sleight, 1 Wend. 520; Skellinger v. Yeudes and others, 12 Wend. 306. It was in the form prescribed by the statute. The writ was legally discontinued. Briggs v. Brown, 6 Wend. 535; and Syme having failed to prosecute it, the condition of the bond was broken.

If the validity of the bond depend on the lawfulness of the writ, an action could not be maintained on a bond where the writ is quashed; and see contra, Gallagher v. Flannelly, 22 Wend. 614. The breadth of the condition of the bond as required by the statute clearly shows that the legislature intended fully to protect the judgment creditor against vexatious writs of error.

III. The plaintiff issues his writ at his peril, and he cannot exempt himself from his obligations on the ground that his proceeding was void. 3 Mass. 304; 1 Wend. 520; 5 Wend. 98, 287; 12 Wend. 241; 1, Salk. 172. A party may sue out error and reverse a void judgment. 6 Wend. 465.

IV. The bond of the 29th May was not a substitute for the first bond. 2 R. S., 2d ed., p. 495, sec. 35. Boyd v. Weeks, 6 Hill, 73. It ought to have been dated the same as the first bond, and to have been executed by two new sureties to the same obligees named in the first bond, or it should have recited the facts. Miller v. Brinkerhoff, 4 Denio, 118.

V. Plaintiff's exception did not discharge the obligation of the sureties or obligors which was absolute and commenced with the writ. Their obligation, like the obligation of bail to the sheriff, is not discharged by exception. Nothing short of the perfection of special bail will discharge sheriff's bail. The one security continues until the other is perfected according to the requirements of the

statute.

An exoneratur will be ordered in favor of special bail, if the principal become a bankrupt. 21 Wend. 670. Not so, however, in case of bail on error. 6 Hill, 630.

The new bond was not a compliance with the statute. 6 Hill, 73. The new bond and justification were a nullity. Kelly v. Moody and Darby, 7 Hill, 156; 4 Denio, 118.

N. Y. Common Pleas.-Ward v. Syme, Wordsworth and Mason.

VI. The judge ought not to have admitted the bond of the 29th of May, or the affidavit of the justification of the sureties therein in evidence under the pleadings. 2 R. S., 2d ed., p. 277, sec. 24; 7 Wend. 194; 10 Wend. 202; 11 Wend. 624; 12 id., 120; Cowen and Hill's notes, p. 449.

The statute makes no provision for a notice under non est factum in debt.

The evidence was not relevant or material, being bad for vari

ance.

VII. The order of the 8th of June was improperly admitted in evidence. It had no virtue to restore the writ of error. It was made without notice to the defendant in the writ, and after this suit was commenced, nor was it properly authenticated or proved. It was never filed.

VIII. This Court cannot regard the writ of error as void from the beginning, or as having been superseded for any other cause than that stated in the order of the Supreme Court of the 7th of June.

That Court having by its judgment already determined that question, its decision is binding here.

IX. Defendants were not entitled to a non-suit even had the bond been void. Having failed to demur, their only remaining alternative was by motion in arrest. 2 Wend. 163.

The non-suit ought to be set aside, and a new trial granted.

H. H. Burlock, for defendant, contra.

1st. The bond and condition is void, the condition being to perform an impossible act, viz., to prosecute a writ of error in a court that had no jurisdiction to review on error the judgment referred to in the recital in the bond. 1 Salk. 172; Com. Digest D, Condition; 2 Hurlstone on Bonds, 10, 11; Laws of 1848, chapter 222, p. 334; Platt on Covenants, 568, 570; Law Library, Vol. 3; Hearville v. Meyers and Goodwyn, 1 Brevard's South Carolina Reports, 3.

2d. The plaintiff by excepting to the sufficiency of the sureties in the bond in suit, discharged them from all liability. 7 East, 579; 1 Archbold's Prac. 244; 4 J. R. 185; 1st Cowen, 54; 2d id., 514; 5th id., 287; Anderson v. Johnson, N. Y. Common Pleas, Feb. 16th, 1842; Drummond and Watson v. Anderson, in Court of Errors, Dec. 1844.

Defendant can have no relief on motion. 22 Wendell, 615, and above cases.

3d. The filing of the new bond with affidavits of justification within the time allowed by statute discharged the obligors in the bond sued. See Van Duyne, late sheriff, v. Cooper, Hill, 657.

4th. The sureties in the new bond having justified, and the attorney for the plaintiff in the suit intended to be removed by the writ of error having had notice of the filing of such new bond and affidavits within the time allowed by statute, Justice Edwards had no power to supersede the writ of error. 2 R. S., 2d edition, 496, § 36. 5th. In legal effect the bond in suit was a bond payable to Ward,

N. Y. Common Pleas.-Ward v. Syme, Wordsworth and Mason.

as survivor of Ward and Goadby, Goadby being dead at the time of the execution of the bond.

6th. The statute does not require the bond to be approved of by any officer.

7th. The defence relied upon was admissible under the plea of non est factum. Graham's Practice, 196-7; 1 Burrill's Practice, 167. 8th. The plea of non est factum in debt on specialty is to be considered the general issue for the purpose of attaching to it a notice. Provost v. Calder, 2 Wendell, 521; Demarest v. Willard, 8 Cowan, 806; Graham's Practice, 196-7; 1 Burrill's Practice, 167.

9th. The non-suit should be confirmed with costs.

DALY, J.-The obligor undertook, if Syme should fail to prosecute the writ, or if it should be quashed or discontinued, or if the judgment sought to be reversed should be affirmed in whole or in part, to pay the amount of the judgment, together with all costs and damages which might be awarded by the court to which the writ was returnable. Syme could prosecute no such writ, for a writ of error cannot issue from the Supreme Court to review a judgment of this court. Laws of 1848, chapter 22. It was an absolute nullity. No motion to quash it was necessary, nor was it capable of being discontinued or superseded. The performance of the bond was therefore impossible. It was undertaking to pay the amount of the judgment and costs upon Symes' failure to do what he could not do, or upon the quashing or discontinuance of that, which having no valid existence as a writ, was incapable of being discontinued or quashed. But it is contended that though the performance of the condition is impossible, the bond, or the obligatory part of it, is nevertheless good, and we are referred to Coke Lit. 206 b., where it is said, "If a man be bound in an obligation, &c., with condition that if the obligors do go from the Church of Westminster to the Church of St. Peter's at Rome in three hours, then the obligation shall be void. The condition is impossible and void, and the obligation standeth good." This is put by the commentator by way of illustration, and he is referring to single bonds with the condition annexed for in his time, it was the practice to underwrite the condition or defeasance, or endorse it upon the bond, or write it upon a separate piece of paper. Thus he says immediately preceding this passage, "If the condition be impossible, the bond is single; and see Shep. Touch. 198. But it is well settled that if a condition be incorporated with the obligatory part of a bond, and is for the performance of an act which is impossible, the whole instrument is void. 1 Salk. 172; Com. Digest Condition D.; 2 Hurlstone on Bonds, 11. The general rule respecting covenant is equally applicable to the conditions of bonds. Where the performance of the condition is in its nature impossible, the covenant is void, though if within the range of possibility, however absurd or improbable, it is good. Platt on Covenants, 569. But this question is settled upon authority. The very point wus adjudged in Smith v. Meyer et al. 1 Brevard, 2. The