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Jarvis v. Sewall.

reversed, and judgment given for the defendant Peter Fox, with leave to the plaintiff to amend on payment of costs.

MULLIN, J. delivered on opinion coming to the same result.

BACON, J. concurred.

ALLEN, J. dissented.

Order reversed.

[ONONDAGA GENERAL TERM, December 22, 1863. Allen, Mullin, Morgan and Bacon, Justices.]

JARVIS VS. SEWALL and others.

The condition of an indemnity bond, given by the defendants to A. and M. to secure them for becoming sureties for S. and S. on appeal from the executive council or court of appeal, in Canada, to the queen in privy council, was that the obligors would pay to A. and M. the "taxable costs" which they might incur and become bound to pay by reason of having executed the appeal bond; with a proviso that S. and S. should allow and permit the defendants to "control and compromise" said suit when they should deem it advisable to do so. In an action upon the bond of indemnity; Held 1. That the plaintiff was not required to aver that the defendants were allowed to control the suit; that the proviso was not a condition precedent, but a proviso or defeasance, which it devolved upon the defendants to set up by answer and maintain by proof, to avoid their liability.

2. That the bond of A. and M. having been given at the request of the defendants, as was expressly recited in their own bond, they could not be heard to object either that it was not valid by the law of Canada, or to insist that the plaintiff' should prove its validity; they being estopped from questioning it.

3. That no proof that A. and M. had paid any part of the costs incurred on the appeal was necessary. That the obligation of the bond of indemnity attached upon the obligors incurring or "becoming bound," to pay the costs; and they became bound upon the affirmance of the judgment appealed from, and the judgment for costs therein rendered, and still more was their liability fixed when a judgment for such costs had been obtained against them.

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Jarvis v. Sewall.

4. That by the "control" of the suit, mentioned in the proviso of the indemnity bond, a control for the purpose of effecting a compromise, only, was intended; and that a request of the defendants, made to S. and S. to discontinue the suit, was not an attempt to control and compromise it, within the meaning of such proviso; nor was the omission of S. and S. to comply with such request a denial of the control provided for in the bond. 5. That the appellate tribunal having affirmed the judgment, and awarded the costs of the appeal, to the respondents, and inserted the sum total in the final order, the sum thus inserted was to be assumed to be the taxable costs of the appeal, within the meaning of the condition for the payment of the "taxable costs;" and if taxation was necessary, the record was conclusive of the amount, and could not be impeached or questioned. 6. That the defendants having been informed of the result of the appeal to the queen in privy council, and requested to pay their bond, no other demand of such costs was necessary before suit brought upon the end of indemnity. MULLIN, J. dissented.

Mode of proving a judgment or decree of the privy council in England, made on appeal from a decision of the executive council or court of appeal in Canada.

Where a judgment is imperfectly proved, on the trial at the circuit, the party may produce, on the argument of an appeal, and leave with the court, a record of the judgment, properly authenticated to make it competent evidence.

A

PPEAL from a judgment entered at a special term after

a trial at the circuit. The action was on an indemnity bond, dated December 27th, 1847, given by the defendants to Arnold and Mair, to secure them for becoming sureties for Smith and Smith, on the appeal from the Canada court of appeal to the queen in privy council, of the suit of Smith and Smith against Simpson and others. The plaintiff is the assignee of this bond. Prior to 1847 the Smiths had brought an action in court of chancery of Canada, against Simpson and others, and succeeded. Simpson appealed to the Canada court of appeal, and that court reversed the judgment. Smith then appealed to the queen in privy council, in England, and Arnold and Mair gave their bond to Simpson and others, to secure the costs of the appeal. The condition of the Sewall bond was, that they would pay to Arnold and Mair the taxable costs which they might incur and become bound to pay by reason of having executed the appeal bond, with the pro

Jarvis v. Sewall.

viso, however, that the Smiths should allow and permit the Sewalls to "control aad compromise" the suit, when they should deem it advisable to do so.

Judgment was entered in favor of the plaintiff, upon the findings of fact by the judge, for $3484.98 damages, and the costs; and the defendants appealed.

J. F. Starbuck, for the appellants.

John Clarke, for the respondent.

BACON, J. To appreciate properly the position of these parties, and the questions which arose upon the trial, it will be expedient briefly to recapitulate the facts of the case. They are substantially these: Prior to the year 1847, Terence Smith and Henry G. Smith had prosecuted a suit against Simpson and others, in the court of chancery of Upper Canada. The object of that suit was to enable them to redeem a valuable tract of real estate. They succeeded in the first instance, and a decree in their favor was made by the vice chancellor. From this judgment the defendants Simpson and others appealed to the executive council or court of appeal in Canada, and by that court the judgment of the vice chancellor was reversed. The Smiths, dissatisfied with this result, prepared to take a further and final appeal to the privy council of Great Britain. To effect this it was necessary to give a bond, and Arnold and Mair became their sureties, in a bond the condition of which was that they should pay all such costs as should be awarded by the privy council to such person or persons as should be entitled to receive the same. As an indemnity to Arnold and Mair for thus becoming sureties for the Smiths, the defendants in this suit executed their bond to said Arnold and Mair. What particular inducement led them to give this bond does not appear, save that they were especially friendly to the Smiths, and believed they had a just claim, and it is probable, as Smith in his testimony

Jarvis r. Sewall.

states, that the expectation of the parties was in case of final success, that a handsome remuneration was to be made to them. The bond of the defendants recites among other things that Arnold and Mair became sureties in the appeal bond at the request of the defendants in this suit. The condition of the defendants' bond was that they should pay to Arnold and Mair, or their assigns, the taxable costs which they might incur, or become bound to pay, by reason of having executed the appeal bond, and the costs and expenses they might be subjected to in the collection of such costs; and there was a further condition or proviso, that the bond should become void if the Smiths should allow and permit the defendants "to control and compromise" the suit thus pending and about to be appealed, when they should deem it advisable to do so.

court.

The appeal was duly taken and prosecuted before the queen in privy council, and by that tribunal the judgment of the court in Canada was affirmed, and the privy council among other things directed that the appellants should pay to the respondents the sum of £411 11s 10d, for the costs of the appeal, and this was made a part of the judgment of the Subsequently to this the bond of Arnold and Mair was prosecuted in the court of common pleas in Canada, and judgment obtained against Arnold and the representatives of Mair, for the penalty of the said bond. The plaintiff in this action became the assignee of the defendants' bond of indemnity, and brings this suit, seeking to recover therein the amount for which Arnold and Mair became liable upon the appeal bond, given as herein before mentioned.

The answer of the defendants admits the execution of the bond described in the complaint, and that they were informed that the appeal had been dismissed, and that they were requested to, but did not pay the costs, referred to in the complaint, and ignores the remaining allegations therein. They then set up as a substantial defense that they were not permitted to control and compromise the suit when they deemed it advisable to do so, and they aver, that in November, 1848,

Jarvis v. Sewall.

they directed the suit to be discontinued, and so informed Terence Smith, who had the entire management of the same, and were not permitted to control the appeal, and afterwards the same was prosecuted and costs incurred. There is a still further defense to the effect that Arnold and Mair had been secured for their liability by the Smiths, and had received payment for all they had been obliged to pay, but no proof was offered on the trial to sustain this answer, and no further notice need be taken of this defense.

Upon the trial a variety of objections were taken to the plaintiff's right of recovery, and the case bristles with exceptions on almost every page. They are creditable to the industry and ingenuity of the defendants' counsel, but it will not be necessary to consider at length any more than he has deemed it proper to present in his printed points and oral argument. Without arguing he has called our attention, as if he deemed them worthy of notice, to three or four objections to the right of recovery, under his fourth point. They may be very briefly disposed of. The first, that it was incumbent on the plaintiff to show affirmatively, that the Sewalls were allowed to control and compromise the suit, was originally urged on the argument of the demurrer, and it is only necessary to affirm the decision then made that this is not a condition precedent, but a proviso or defeasance, which it devolved upon the defendants to set up by answer (as in fact they have done in this case) and maintain by proof. The judge on the trial rightly held this to be the law of the case.

In regard to the second, that the bond of Arnold and Mair being given in a judicial proceeding, there was no evidence that the law of Canada recognizes such an instrument, it is, I apprehend, enough to say that the bond having been given by the request of the defendants, as is expressly recited in their own bond, they cannot be heard to object either that it is not valid by the law of Canada, or to insist that the plaintiff shall prove its validity. They are estopped from questioning it.

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