SWAIN et al. v. GRAVES et al., 8 Cal. 549

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. Action upon undertaking on appeal, in which the bond is set out in full in the complaint. Judgment for plaintiffs in the Court below, and defendants appealed. Plaintiffs allege, in their complaint, that they obtained judgment before a justice of the peace, against William H. Rhodes, Washington Bartlett, C. J. Bartlett, and Edward Conner, and that said defendants appealed to the County Court; and that the defendants filed in the Justice’s Court an""undertaking, executed by Rhodes, as principal, and by Graves and Hoadley, as sureties.

The bond was in the penal sum of four hundred and ten dollars; but in the condition of the bond, if is stated that Swain and McDonald recovered judgment, stating the sum, but not the parties defendants, and then states “ that whereas, the above bounden plaintiff is desirous of appealing,” etc., and “if the above bounden plaintiff” shall pay, etc. An appeal-bond will be so construed as to carry out the obvious intention of the parties. 1 Wend., 28; 8 B.

Mon., 497. “ To support the condition of a bond, the Court will transpose or reject insensible words, and construe it according to the obvious intent of the parties.” 1 Saund., 65. “ There are many cases on the construction of bonds, where the letter of the condition has been departed from, to carry into effect the intention of the parties.” 3 Cranch, 235. In the case of Stockton v. Turner, 7 J. J. Marshall, 193, it appeared that the name of Peter Cox, the obligor of the bond, was inserted in the condition, instead of that of Turner, the obligee.

But the Court held that this was not material, as it was a mistake of such a character as -not to affect the obligation of the bond, and was explained by its whole tenor and effect. So, in this case, the mistake is most palpable. The bond is executed by Rhodes, Graves, and Hoadley, to Swain and McDonald. The only parties bound in the ¡Denal portion of the bond were Rhodes; Graves, and Hoadley; and where the phrase “the above bounden plaintiff” is afterwards used in the condition, the intention is clear.

There could be no variance between the complaint and the bond introduced in evidence, as the bond was correctly set out in full in the complaint. There was no variance between the allegations of the complaint and the record from the County Court, nor was there any material discrepancy, between the bond and the record, as the full style of the suit was not given in the record. But conceding that there was a necessary discrepancy between the condition and the penal portion of the bond, the bond would have been single, and the plaintiffs entitled to judgment for the whole amount. 1 Saund., 66; Lord Ray, 68; 7 J. J.

Mar., 193 Judgment affirmed.