Opinion
December Term, 1824.
Where the condition of a bond given upon obtaining a certiorari was that the obligor should make his personal appearance, and abide by and stand to the judgment of the court, it was Held, that these words were equivalent to the words "perform the judgment of the court," and imposed on the obligor the payment of the sum recovered against him.
THIS was an action of debt on the following bond:
Gaston for the appellant.
Ruffin and Hogg contra.
"Know all men by these presents that we, Michael Boney and Charles Hooks, are held and firmly bound unto Thomas Molton, clerk of the Superior Court of the county Duplin, in the sum of $2,500, to the payment of which well and truly to be made we bind ourselves, our heirs, executors, etc."
The condition of this bond was in these words:
"The condition of the above obligation is such that, whereas the above bounden Michael Boney has prayed a stay of the proceedings in a certain matter lately tried in the county court of Duplin, wherein Stephen Miller, senior, is plaintiff and said Michael Boney is defendant; now, in case the said Michael Boney makes his personal appearance before the judge of the Superior Court to be held for the county of Duplin on the fourth Monday of September instant, and then and there abide by and stand to the judgment of said court, then the above obligation to be void and of no effect; otherwise, to remain in full force and virtue."
The breaches assigned were: (1) that Michael Boney had not abided by or stood to the judgment of the court rendered in the case of Stephen Miller, senior, against Michael Boney, nor Charles (343) Hooks for him; (2) that Michael Boney had not abided by or stood to, neither had he paid, satisfied, or performed the judgment of the court rendered in the case of Stephen Miller against Michael Boney, nor had Charles Hooks for him.
On the trial below the plaintiff proved the execution of the bond, and gave in evidence the judgment in the case of Stephen Miller v. Boney, rendered at March Term, 1822, of Duplin Superior Court, for $682.99, with $303.37 interest and costs. He also gave in evidence an affidavit made by Boney before his Honor, the Chief Justice of the State, as the ground for a prayer of writs of certiorari and supersedeas, setting forth that at April term of Duplin County court Stephen Miller, having the promissory note of Boney, procured Boney to accept the service of a writ issued thereon, returnable, as Boney thought, to the succeeding term of the court, promising Boney that all things should be done rightly and justly, and saying that the suit should be conducted in a friendly manner, and under these assurances Boney left the court and went home; apprehending, however, that a payment which was not indorsed on the note might not be allowed, Boney employed an attorney of the court to appear for him, but did not inform him when the writ was returnable. Miller caused the writ to be returned at the same term, and obtained a judgment final by default for the whole amount of the note without allowing the payment, and issued an execution which was levied on Boney's property.
The Chief Justice, on this affidavit, granted his fiat, directing the clerk of Duplin Superior Court, upon receiving from Michael Boney bond and security conditioned to abide by and perform the judgment of Duplin Superior Court, to issue a certiorari and supersedeas for the purpose of bringing up the proceedings from the county court of Duplin, and superseding the execution against said Boney.
(344) The plaintiff then gave in evidence the writs of certiorari and supersedeas from Duplin Superior Court, which issued in obedience to the fiat.
The defendant then proved that Michael Boney was taken on a ca. sa. issuing on Miller's judgment, and was regularly discharged under the insolvent laws of North Carolina.
On this evidence a verdict was found for the plaintiff. The defendant moved in arrest of the judgment that the bond declared on contains neither the form nor the substance of bonds required to be given in cases of certiorari, nor of the bond ordered to be taken in the fiat of the judge; and that the arrest, imprisonment, and discharge of Michael Boney under the insolvent laws on a ca. sa. issuing on Miller's judgment, was a performance of the conditions of the bond, and, further that if the bond is valid, and under the facts of the case the defendant is liable thereon, then the present is not the remedy given by law.
These reasons were overruled and judgment rendered, whereupon defendant appealed.
The recital in the condition of the bond is (347) sufficient to show that the defendant was apprised of the purpose for which it was given, viz., to obtain a stay of the proceedings which had been had against the principal in the county court. The stay was obtained, the cause was reheard in the Superior Court, the judgment affirmed, and the question arising on this record is, whether the words of the condition, viz., "shall make his personal appearance before the judge of the Superior Court, and then and there abide by and stand to the judgment of the court," impose upon the defendant an obligation to pay the amount of the sum recovered Had the bond been made payable to the plaintiff in the judgment, I suppose that, according to the principle of Rhodes v. Vaughan, 9 N.C. 167, the bond would have been sufficient, although slightly variant from the words of the act relative to appeal bonds, because the law prescribed the responsibility of the obligors in the bonds taken to prosecute appeals. And, indeed, it has been repeatedly decided that if an appeal bond substantially, though not literally, provided for the objects required by law, it should be supported. This, however, must be considered as a voluntary bond, and must stand or fall by its own strength or weakness. By the words, "make his personal appearance," the parties must have understood that the defendant should attend court by himself or attorney and prosecute the certiorari. One of the senses in which the word "abide" is used is "to bear or support the consequences of a thing"; and had it been used (348) without the adverb "by" it might be construed that he would bear the consequences of the judgment rendered in the Superior Court. Succeeded by the adverb, it gives it something of an active signification, and imports not merely that he would suffer or bear the consequences of the judgment, but that he would likewise defend, and support, and maintain it — all partaking of the primary sense of the word, "a firm and steady continuance." A person who shall promise to abide by a judgment would break his promise by refusing to pay it. To "stand to." in common acceptation, signifies to remain fixed in a purpose to abide by a contract or assertion. But in legal parlance it has obtained by long usage, an active and efficient meaning, and imports an act to be done by the party. Thus, if the condition of a bond be "that I shall stand to the award of J. S., and he doth award me to pay 20 l. to W. S. by such a day, and on the day I do tender him the 20 l., but he doth refuse it," in this case I have sufficiently performed the condition, and the obligation is saved. So again, "if the condition be that I shall stand to the award of J. S., and the award that I shall enter a retraxit in a suit depending between me and the other party, and I do not so, but am nonsuit, or do discontinue my suit, this is no good performance of the condition." 1 Shep. Touch., 373. Awards and judgments bear so near a resemblance to each other that a bond conditioned to "stand to" one could not reasonably bear a different construction from a bond conditioned to "stand to" the other. When, therefore, I test the signification of the terms used in the condition of this bond, either by their general acceptance in common speech or by their strict technical meaning in the language and understanding of lawyers, I cannot escape from the conviction that they bind the defendant to pay the amount of the judgment; for I find it laid down in the best authorities that although the condition of a bond (349) when it is doubtful shall be taken most favorably for the obligor, for whose advantage it is made, and most strongly against the obligee, yet that a reasonable and equal construction shall be made according to the intention of the parties, although the words tend to a contrary understanding. Dyer, 14, 52. My opinion consequently is that the judgment ought to be affirmed.
The act of 1777, New Rev., ch. 15, sec. 75, directs that when appeals are taken from the county to the Superior Courts, bonds shall be given to prosecute such appeal with effect, and to perform the judgment, sentence, or decree of the Superior Court. The act of 1810, New Rev., ch. 793, directs that when certioraris are directed to the county courts, the clerk of the court is directed to take security in the same manner and under the same regulations that security is taken in appeals from the county to the Superior Courts. It is to be observed that these acts point out no form in which appeal bonds are to be taken; and if the bond taken is substantially good, it is sufficient. The question is whether the words abide by and stand to the judgment, etc., are equivalent to the word perform the judgment. The act which required the bond to be given pointed out the liability to which the security was about to subject himself, and he understandingly undertook that the defendant should pay the debt when he undertook that he should abide by and stand to the judgment which should be given. What are the injunctions of the judgment? That the defendant shall pay to the plaintiff so much money; and it cannot be said, as I think, that he abides by and stands to the judgment without doing it. The word "perform" is one of stronger and more active import; but although it is said in the schools that no two words have precisely the same meaning, yet in common life and in common parlance we know there are various words used as substantially meaning the same thing. It is said the defendant is a security, and the bond should be (350) strictly construed in his favor. It is true he is so, and puts no money in his pocket; but the consideration is that by becoming security he deprived the plaintiff of the judgment he had in the county court, and thereby jeopardized the debt. A loss to one party is equivalent to gain to another.
But it is said that this defendant has stipulated that the defendant shall make his personal appearance, abide by, etc., and that he is bound only as bail for his appearance and not for the debt. In this view of the case the whole burthen of the obligation rests upon the word appearance; and if the defendant is received merely as bail for his appearance, the words abide by and stand to the judgment which the court shall give are inoperative. But this construction of the words is contrary to the meaning of the Legislature when they directed security to be taken. But if by any fair construction of the bond we can make it harmonize with their meaning, I think we ought to do so. It is for this reason that I consider the words abide by and stand to as more operative than the words make his personal appearance. But take the words altogether, that he is to make his personal appearance, abide by and stand to the judgment which the court pronounces, I think their meaning is that he shall perform the judgment. But it is said this bond was not given as the law directs; it should have been given to Miller instead of Molton. That is true; but if the bond was given bona fide, as I believe it was, although given to the wrong person, it was given for the same purpose, the same consequences follow. It answered the same purpose in removing the suit by certiorari to the Superior Court as if it had been given in any other way. The act of 1818, New Rev., ch. 962, sec. 4, directs, in case of appeals to the Supreme Court, bond shall be taken to abide the judgment of the court, and that such bond shall be proceeded on in the same way as in case of appeals from the county to the Superior Court; that is, that the security shall be answerable for the debt, if the defendant does not pay it; so that it appears in this case that the (351) obligatory part of this bond is not so strong as the one under consideration. I am of opinion that judgment should be given for the plaintiff.