1821. KIPLING against TURNER. Tuesday, of a bond, after B., and C. had D. and E., was, DEBT on bond. The defendant craved oyer of the The condition condition, which was as follows: Whereas G. N., reciting that 4., I. T., and I. T. N., have lately filed their bill of complaint filed a bill in in chancery, against R. M. and I. S., defendants, touch- equity against ing the matters therein contained. Now the condition that the obligee would pay all of this obligation is such, that if the above bounden, such costs as George Turner, his heirs, &c., do, and shall well truly pay, or cause to be paid, all such costs as said Court shall think fit to award to the defendants on the hearing of the said cause, or otherwise, then obligation to be void, &c. And he then pleaded, first, the Court of Chancery and should award to the the defendants, on the hearing of the cause: Held, by three this Justices (46 bott C. J. dubi tante), that the before any costs awarded, could not be pleaded in discharge of the bond. that the said Court, in the said condition mentioned, death of E., had not awarded any costs to the said defendants, R. M. and I. S.; and secondly, that after the execution of the bond, and before the said Court had awarded any costs to the said R. M. and I. S., to wit, on, &c. at, &c. the said I. S. died. Replication to the first plea, that after the death of I. S., by the custom and practice of the said Court, he, the said R. M., was entitled to certain And that after the death of I. S., by a certain order of the said Court, made in the said cause, it was ordered, that the plaintiffs should pay to the said R. M. his costs, to be taxed, &c. and that the costs were afterwards taxed at 387., and that defendant had not, though And as to the second requested so to do, paid the same. costs. plea, demurrer. The defendant also demurred to the replication to the first plea. S 3 J. Wil 1821. KIPLING against TURNER. J. Williams, for the plaintiff. The question here is, whether the bond be discharged by the death of one of the parties, who were defendants in the original suit in chancery. These conditions are to be construed liberally, and every reasonable intendment must be made to effectuate the object of the parties. That object in this case was clearly, to indemnify the plaintiffs in the suit in equity against any costs they might incur therein. There is not any thing in the condition which at all refers to the death of one of the defendants in equity, as an event in which the bond is to be at an end. The condition is to indemnify against any costs, if they accrue. In Com. Dig. Tit. Condition L. 1., it is laid down, that if a condition be to enfeoff two before such a day, and one dies, the party ought to enfeoff the other. Littledale, contrà. This is the case of a surety, and the condition is, that he will pay all such costs as shall be awarded to R. M. and I. S. and in such a case, if I.S. dies the bond is discharged. The principle on which cases of this sort depend, is founded on Lord Arlington v. Merricke. (a) And Wright v. Russel (b), Barker v. Parker (c), and Strange v. Lee (d), are authorities to shew, that a bond given for the faithful discharge of a clerk's duties to A. and B., is discharged by either the death of A. or B., or by a change of the firm, by introducing a third person. And the reason given, is, because the surety might have a special reliance on A. or B., which induced him to enter into the obligation. So again, he will not be liable beyond the particular time (a) 2 Saund. 414. a. (b) 3 Wilson, 530. 2 Blackst. 954. S. C. (d) 3 East, 484. men mentioned in the condition. Here, the death of Ì. S. may perhaps have been a cause of the costs having been incurred. And there is no averment in the replication, that the costs accruing were such as would have accrued in case I. S. had survived. ABBOTT C. J. My mind is not quite satisfied upon this case, because, the situation in which defendants in equity stand as to costs, is not the same as at law. For, in equity, the Court sometimes orders the plaintiffs to pay costs to one defendant, and to receive them from another, and if that had been done here, this defendant would have received the advantage. Í doubt therefore, whether we can properly introduce the words or either of them," into the condition of this bond, in order to satisfy the intention of the parties. The inclination of my opinion is, therefore, in favour of the defendant; but, as the rest of the Court are of a different opinion, and entertain no doubt upon the subject, the judgment must be for the plaintiff. BAYLEY J. This bond is not conditioned to pay such costs as the court of equity shall award to R. M. and Í. S. by name, but to pay such costs as shall be awarded by that court to the defendants, and I think, that the meaning of that is, that the present defendant undertakes to pay all such costs as shall be awarded by the Court to those who at that time fill the character of defendants in equity. The case is very different where persons are described by character, and where they are described by name. If, for instance, a man makes A., B., and C., his executors, and directs that A., B., and C. shall sell his property, then if A. dies, B. and S4 1821. KIPLING against TURNER. 1821. KIPLING against TURNER. B. and C. cannot sell it, but if he directs his executors HOLROYD J. I entirely agree in the opinion pronounced by my Brother Bayley. It appears, that here, there were three persons filling the character of plaintiffs, and two, that of defendants in equity, and the intention appears to me plainly to have been, that whatever costs the plaintiffs in equity were compelled to pay, should be repaid by this defendant. I think, therefore, that the plaintiff is entitled to our judgment. BEST. J. The object of the Court is to ascertain the intention of the parties, which it is not very easy in this case to do. I think, however, that it was this. The defendant undertook, that if the persons mentioned in the condition would file a bill in equity, he would be responsible for all the costs which might be awarded against them by the Court. I agree, therefore, that in this case, the plaintiff ought to recover. Judgment for the plaintiff. (a) (a) See Barclay v. Lucas. 1 Term Rep. 291. (note a.), where the security was given to the banking-house, and not to the partners by name, and there the surety was held to be liable, notwithstanding a change of the firm. 1821. LEWIS and Others against OVENS. CAMPBELL had obtained a rule to shew cause why the defendant, who had sued out a writ of error in this case, should not give security for costs, or why the plaintiffs should not be at liberty to proceed on the judgment, notwithstanding the writ of error. It appeared that the defendant resided in Ireland, and that the writ of error was brought after a sham plea, and judgment up on demurrer to the replication. Marryat and Chitty shewed cause, and contended, that this was distinguishable from the cases in which the Court repuires security for costs, where a plaintiff resides out of the jurisdiction of the Court. Here, if the security be not given, the party will be liable to be taken in execution. In other cases, the proceedings are only stayed in the mean time. Campbell, contrà stopped. ABBOTT C. J. This is quite analogous to the cases referred to, and it is even a more favourable case for such an application. The present rule, if made absolute, will not stop the party from proceeding in his writ of error, if he has any substantial ground for it. But unless he gives security for costs, the other side may, in the mean time, proceed on their judgment. Rule absolute. Where a plain tiff in error re sides out of the jurisdiction of the Court, he may be com pelled to give security for default thereof, costs; and, in the defendant in error will be permitted to proceed on his judgment, notwithstanding the writ of error. |