Bellinger v. Gardiner

Motion to discharge the defendant from arrest on the ground that the undertaking, executed at the time the order of arrest was granted, was not signed by the plaintiff, but by the sureties only.

Section 182 of the Code requires that, before making the order of arrest, the judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect, &c.

If the undertaking be executed by the plaintiff without "sureties, he shall annex an affidavit that he is a resident and householder—a freeholder within the state, and worth double the sum specified in the undertaking.

It is contended, in support of the motion, that this provision means, that in all cases the judge shall require a written undertaking by the plaintiff—that is, executed or signed by him; and that an undertaking not signed or executed by him is to

But is it not manifest, that “ on the part of the plaintiff,” or “ on behalf of the plaintiff,” which are equivalent expressions, is denoted substitution, that the thing is to be done, by others, in behalf of, or on the part of, and not by the person himself 1

By section 334, on an appeal to the court of appeals, a written undertaking must be executed “ on the part of the appellant.”

By § 222, in reference to security upon injunction, it is provided, that “ the court, or judge, shall require a written undertaking on the part of the plaintiff, with or without sureties,” &c. Under this section it has been held by the superior court, that when a non-resident plaintiff applies for an injunction, he must furnish an undertaking, executed by a resident surety. (1 Sand. 700.) Is not such an undertaking on the part of the plaintiff 1

It seems to me, that if the framers of the Code had intended that the undertaking should have been in all cases executed by the plaintiff, they would have said so, and not used the expressions which they have. These clearly indicate, to my mind, that they did not intend to require the undertaking in every case to be executed by the plaintiff or appellant; and that if done on his part or behalf with sufficient and satisfactory security, it is a full compliance w7ith the Code.

I think this view is fully sustained by the case in this court, of Courier and others agt. M'Namara, (9 How. Pr. Rep.255.) In that case a motion was made to set aside the order of arrest. Upon the making of it, an undertaking was presented, executed by one Ferguson, on the part or behalf of the plaintiffs. Harris, Justice, held the undertaking sufficient, though it does not distinctly appear that the precise point now under consideration was raised. I cannot doubt, however, that it escaped the observation’of that intelligent judge. He says, “As I understand it, the meaning of this is, that the judge shall require security to be given, but it is left to him to determine upon the sufficiency of that security. If an undertaking executed by one surety is deemed sufficient, the law is satisfied. • If more are

I regard it, therefore, as entirely within the discretion of the judge issuing the order, whether he will accept an undertaking executed by the sureties, or a surety only, on the part of the plaintiff, and that the exercise of his discretion cannot now be called in question.

I have not overlooked the case of Richardson agt. Craigs ( 1 Duer, 666 ,) where Duer, justice, in the superior court, refused to grant an order of arrest, upon the ground that the undertaking, on the part of the plaintiff, was executed only by the surety, and not by the plaintiff. He held, that in all cases under § 182 of the Code, the undertaking must be signed by the plaintiff, and that the Code admitted of no other interpretation. He did incline to the opinion, that when the plaintiff was a married woman, or an infant, the same might be signed by the next friend or guardian, and that this would be a signing by the plaintiff.

I have reflected much upon this case, and cannot reconcile it with the language of the Code. My high respect for the eminent jurist who gave this opinion, and for those who concurred in it, have led me to doubt the correctness of my own conclusions. But they are so clear to my own mind, and are sustained, as I believe, by the authorities in this court, and the practice in it, that I cannot hesitate to follow the latter.

But if this objection to this undertaking were well founded, I have no doubt that under the provisions of the Revised Statutes, (2 Rev. Stat. 556, §§ 33, 34,) I have the power to permit the undertaking to be amended, by having the same executed

By § 341 (formerly 290) of the Code, it is enacted, that an undertaking upon an appeal shall be of no effect, unless it be approved, in the first instance, by a judge of the court below, &c. The undertaking on the appeal in that case had not received such approval. In that respect, that appeal was imperfect, if security is required; for the undertaking without such approval could be of no effect.

Edmonds, J., in delivering the opinion of the court, held, that these sections of the Revised Statutes were applicable to undertakings under the Code, and that it was competent for the court to amend the same in any respect; and that, thereupon, it shall be deemed valid from the time of its execution; and that the case came within the 34th section of the Revised Statutes, and might be amended in this respect.

The motion, therefore, to discharge the defendant is denied, but without costs.