#### Molton, to the use of Miller, v. Hooks.

~j v From Duplin. J

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:

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 of Duplin, in the sum of two thousand five hundred dollars, to the payment of which well and truly to be made, We bind ourselves, our heirs, executors, &c.

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 sfa. of the proceedings in a certain matter lately tried in the County Court of Duplin, wherein Stephen Miller, senior, is plaintiff, and said Michaei Boney is defendant; now m case the said Michael Boney makes his personal appearance htifore the judge of t he Superior Court, to be held for the county of Duplin mi the tour b Monday of September instant, and then and there abide by and stand to the judgment of said Court, them the above obii^at on to o., void and of no effeet, otherwise to remain in full 'farce and virtue;.

*343The 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 had Charles 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 aginst Michael Boney, nor had Charles Hooks for him.

On the trial below, tbe 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 jg 682 99, with S’ 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 m a friendly manner, and under these assurances Boney left the Court and went home: apprehending, however, that a payment which was not endorsed 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 par-*344pose of bringing up the proceedings from the County Court of Duplin, and superseding the execution against said Boney.

The plaintiff then gave in evidence the writs of certio-rari 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 certio-rari, 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.

Gaston, for the appellant.

The breach does not come within the condition of the bond: the condition is, that of a bail bond, in which 11 stand to and abide by” are the terms commonly used. (2 Hawks 167. Burns’ Just. “ Bail.” 145.)

The operative term in the condition of an appeal bond is, “ to perform the decree of the Court,” (act of 1777, ch. 115. sect. 75.) and by the act of 1810, ch. 793. JV*. M. the party obtaining a certiorari shall enter into bond in the same manner and under the same regulations as exist in cases of. appeal, and this is the condition which the judge in his fiat directed, and which the. law pre.-*345scribed. The bond here taken would not sustain an appeal and on motion the appeal would be dismissed.

In Forsythe v. M■ Cormick- (2 Law Repos 472-) the expressions were, that the appellant should prosecute his appeal with effect, or should pay such costs and charges as are by law prescribed: this was not a good appeal bond, notwithstanding the general term used, and though by law he was required to pay the debt. The words, “ stand to and abide by,” are not synonimous with the word “perform;” the first have a passive signification, intending to apply to negative conditions to be imposed on him; the last has an active signification, and obliges him to the performance of active duties. (Kyd mi Awards 401,

2. Appendix 412.)

The condition of the bond is for the benefit of the obli-gor, and therefore he is always favored in its exposition.. Laughter’s case, (5 Co.)

When a surety is concerned, the Court will not construe the instrument so as to extend his liability beyond the letter, and sometimes will not hold him bound by the letter. Arlington v. Memck, • 2 Saund. 415. note. 3 Wil--son 539. 4 Taunt. 676. 10 Johns. 180. 272. 7 Term R., 254.)

The defendant is discharged by the imprisonment and release of Boney. (Burns’ Just. “ Bail,” 144, 5.)

Ruffin, contra.

The cases which have been last cited are cases of guarantees, where the contracts were made by one set of men, and the actions prosecuted, or in the case of obligations, the breaches assigned by other persons.

In all cases where the surety and principal are bound by the same instrument the language used by them is to be understood as used by the principal, and is to receive a strict construction against all the obligors, covenant-ers, &c,

The case from 10 Johns. 272. relied on, deserves par*346ticular remark as being a most extraordinary case of construction; it decides that the words well and faithfully perform,” mean “ honestly,” and not “ diligently.” it proves too much, for according to it, if the words here used had been “ well and truly perform the judgment,’? Hooks would be excused by the inability of Money.

The acts of assembly requiring bonds on appeals,, writs óf error, and writs of certiorari and injunction, do not prescribe any form of words; they merely direct the objects to be provided for by the bond, and if the bond in its condition depart from the direction, it is not void, and the Court will so construe the words of the condition as to give the defendant in appeal, in error. &c. the advantage of the security provided by law for his benefit. Gully v. Gully. (1 Hawks 20.)

The only inquiry is this, are the words used comprehensive enough to bind Hooks to perform the judgment of the Court? Money had the advantage of his writ, and neither he nor his surety is entitled to any favor.

The validity of the bond depends upon the consideration whether a party praying an appeal or certiorari must be, in substance, bound to perform the judgment. In common parlance “ abide by and stand to,” do mean “to perform,” as in the case of reference to arbitration.

In the act of 1777, ch. 115, the words “abide by,” “perform,” and “fulfil,” are used as synonimous, and the judge in the fiat so considers and uses them: and in a declaration on a bail bond the breach assigned is, that the judgment has not been performed, or the person not surrendered.

In the case of Rhodes v. Vaughan, (2 Hawks 167.) it was objected that the words “ stand to and abide by” bound the surety to pay the debt; the Court construed the words propter subjectam materiam, and held that they were used in reference to the law, by which the surety was discharged by surrender; or that the surety, upon *347surrender, was discharged by law, independently of his contract.

Hogg,

on another day, on the same side with Ruffin, referred to the 4th section of the act of the general assem-My, ch. 962. JV*. R. establishing the Supreme Court, whereby appeals are to be granted on giving bond “to abide” the judgment of the Supreme Court; abide being the only operative word in the passage, and evidently-meaning to perform.

Taylor, Chief Justice.

The recital in the condition Of the bond is 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 file 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, (2 Hawks 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 obli-, gors 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, Ctmrt by himself, or attorney, and prosecute the *348rari. One of the senses in which the word “abide” k u'se'd is, “ to bear or support the consequences of a thing;” and had it been used without the adverb “ by,” it might jje C011()trued 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 201. to W. S. by such a day, and on the day I do tender him the 201. 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 he 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. 37.5.) 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 *349down in the best authorities, that although the condition of a bond when it is doubtful, shall be taken most favour-ably 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.

Hall, Judge.

The act of 1777, New Eev. 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 Eev. 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, &c. 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 substan*-*350tially meaning the same thing. It is said the defendant is a security, and the bond should be strictly construed m his favour. It is true he is so, and puts no money m ys 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, &c., 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, JYew 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 *351the 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 obligatory paid of this bond is not so strong as the one under consideration. I am of opinion that judgment, should he given for the plaintiff.

Henderson, Judge,

dissentienle — The words « stand to” mean, not to fly from, and the words “ abide by,” to acquiesce in. They import nothing active; they are fully satisfied by inaction. But, like all other words, the representatives of ideas, they may mean something more, but that farther meaning must be collected from the context: for in the construction of words, as well when not reduced to writing as when they are, they must all be taken together, and the meaning of one word may be cither abridged or enlarged by others. The term « heirs general” is frequently construed “ heirs special,” or heirs of the body,-.when by other expi’essions in the same instrument it appears that they were used in that sense. So the words “ stand to and abide by” in bonds or agreements of submission to arbitration, may import an obligation to perform the award, that is something active, when they are the only words used, as is sometimes the case; although more properly their meaning is referable to the acquiescence in the award, promised by or imposed upon the claimant in the submission, than to the performance of the party, who merely resists the claim. But as it is quite clear that from their very nature all submissions to an award impose on the claimant an acquiescence in the award in consideration of the performance promised by the adverse party, the very nature of the transaction requires that such exposition should be. given to the words; otherwise it is not the thing which every other part of the transaction declares it to be. The authorities, therefore, which go to show that these words, when solely used in submissions to awards;, impose an *352obligation of performance, do not prove ‘that such is the meaning of these Words wherever inserted uninfluenced by others; but that such meaning may, from the context, be ■ imposed on them when the thing could not be what it professes to be without giving them such meaning. Upon examination of the other parts of this obligation, so far from finding any thing by which the natural import of these words can be extended t.o performance of the judgment of the Court, there are strong indications of a contrary intent. The words alluded to are, shall appear at Court; the whole sentence standing thus: “if the said Michael Boney shall appear at Court, stand to and abide by.” They are all acts of the same class, the one is conducive to the other. He shall appear at Court, to show that he flies not from the judgment, and that he acquiesces in it, that the Court may have it in its power to make the judgment effectual. But if it is understood as the plaintiff contends, that is, that he shall appear at Court, stand to and perform the judgment of the Court, two acts are required to be done in which the obligee is not at all interested; it is a matter of no importance to him whether the ob-ligor appears at court or not, whether he stands to the judgment or not; if the money is paid, it is all that he can rightfully require. For why does the obligee require his presence to compel him to pay the money? He has the security bound that he shall actually do it; not only that he shall place himself in a situation that a payment may be enforced, but he is bound that an actual payment shall be made. To test the correctness of this reasoning, suppose that the obligor had actually paid off the judgment, but had failed to appear at court; in a suit brought on the bond, the defendant pleads such payment or satisfaction; the plaintiff replies, that he did not appear at Court: if the words of the bond are taken as stated last above, and as the plaintiff contends they should be read, then payment is no discharge, for the obligation imposed a .performance of three acts, viz. appearance, standing to, *353and payment. If taken, therefore, according to this redd-ing, the bond is forfeited, although the judgment was actually performed. I do not put this case to show, that if such were the words of the bond, that payment being the major and containing in itself the minor, would not save the penalty; for upon the strictest rules of law, nothing but nominal damages could have been recovered for not appearing at Court, as on a covenant to do any other indifferent act not prejudicial or beneficial to the plaintiff. But I put the case for the purpose of showing that the obligation would be incongruous, and the bond should not he so read, if it could be read otherwise; much less should it be so read when such reading would be incongruous and enforce unnecessary and superfluous obligations; whereas if it is read as the defendant contends it should be, by giving the proper meaning to the words, the incongruity would he avoided. Each act is conducive to the other, and in each the obligee would have an interest. And that they would not he incongruous, is shown, not by assertion, or even by reasoning which may mislead, but by authorities of the highest kind; I mean the form of the bail bonds of our country, both in civil and criminal cases, and recognizances of hail in England in civil and criminal Courts also. There the words are, shall appeal', and answer, and stand to, and abide by; no incongruity can be attributed to such high authority; which also proves that the words do not import an obligation of performance, for we all know that bail are not bound that the principal shall perform the judgment of the Court. Appearance and acquiescence is all the obligation which such words impose. But we are met by what was considered an unanswerable authority, viz. that the words abide by are the only obligatory words which are used in directing bonds to he given upon appeals from the Superior Courts to this Court, and that in such bonds these words alone impose an obligation of performance. (Seo the act of 1818, establishing this Court.) *354To my mind this is a strong authority the other way. It is not denied that words may he explained by the context, that they may bo abridged or enlarged thereby. Heir gCneral is frequently read heir special; the words children, read heirs, when by something in the same writing it appears that they were used in that sense. So here, the legislature having declared that the same remedy should be had upon appeal bonds to this Court, as are required by prior laws upon appeal bonds from the County to the. ■Superior Court; and such bonds imposing an actual performance on the obligors, and the ads of assembly having directed judgments to be entered against them for the full amount of the recovery, it is quite evident that the legislature in this act used the words “ abide by” as imposing an obligation of actual performance, for the same remedy implies the same rights, and from the context we arrive at the meaning of the words “abide by.” But this is a solitary instance, as far as I know, and I presume as far as the counsel for the plaintiff knows, in which the legislature has used the words to import an obligation of actual performance; and an occasion to express that idea must have very often occurred in that body since it first began to legislate, and a much longer period has passed since England had a parliament, and I do not know oí a single instance where they have used it in that sense. To be sure this is negative authority; but so many negatives amount almost to positive authority. I think, also, that this construction meets the real justice of the case; for when the same words are used which are used in bail bonds, a transaction of almost daily occurrence and with which the people are conversant, it is highly reasonable to presume that the obligors thought they v ere incumng the obligations of bail only, as the same words were used in bail bonds. I therefore think there should bo a new trial.