Gardener v. Woodyear , 1 Ohio 170 ( 1823 )

*By the Court:

The bond in this case was taken under the ninety-fifth section of the judicial act, which directs that it shall be taken “in double the amount of the judgment obtained or decree rendered, conditioned-for the payment of the condemnation money and costs, in case the judgment of the common pleas should be affirmed in whole or in part.” This direction is not pursued in terms, the words used being, “that he will prosecute the said writs to effect, and abide, the judgment of the court thereupon had.” The defendants insist that the condition not being in conformity with the statute, the bond is inoperative, that it never was operative, and that the- writ of error might have been quashed.

The principal point of the defendants’ argument is, that the stipulation, contained in the condition is different and more disadvantageous to them than that required by law. By the latter they are to pay the'judgment and costs, if the judgment he affirmed. By the bond they-forfeit the obligation, if for any cause the party should fail to prosecute his writ to effect.

The ninth section of the judiciary act of 1803, regulating appeals from the common pleas to the Supreme Court, directed that bond, should be given “for prosecuting his appeal to effectThe seventh-section of the act of 1805, on the same subject, contains the same ■provision; and the ninth section of the same act directs that, on writs of certiorari and habeas corpus cum causa, the condition of the bond shall be, “ that he will prosecute the same to effect, and abide the judgment of the court thereupon had.”

The eleventh section of the judiciary act of 1806, in relation to-writs of error, certiorari, etc., directs that bonds shall be taken, conditioned, “ that he will prosecute the same to effect, and abide the judgment of the court thereupon had.” Section 13 of the act of 1808 makes the same provision.

In the revision of 1810, this phraseology was changed, and that introduced which is contained in the present laws. From 1803 to 1810, the courts uniformly decided that the undertaking to prosecute the writ to effect, and abide the judgment of the court thereon had, subjected the parties in the bond to the payment of the amount of the judgment and costs. The change of language in 1810 was adopted to express, in more explicit terms, the same thing which the courts-had adjudged the other terms to express.

The bond in question contains precisely the very terms required by the earlier statutes in such cases, and which were interpreted by the courts to subject the obligors to the same liability imposed by *the existing law, and to no other. This interpretation was adopted from a clear conviction that such was the effect which the legislature intended the terms used should have. Because the legislature have now adopted more explicit terms, the court can not be warranted in deciding that the same terms, used for the same purpose, meant one thing in 1810, and another thing in 1820'. It is, therefore, the opinion of the court, that the condition is, in substance, the same as if it had contained the express terms now required by the statute.

Upon an examination of the cases cited, as far as the authorities are within reach of the court, it is found that, taken altogether, the courts of other states have gone much further to support statutory bonds than it is necessary to go in this case. Where the bond has-been held inoperative, the circumstances were materially different from those which arise here. There is no case where a bond, fairly and regularly executed, and comprising, substantially, all the requisites of the statute, has been adjudged void because it departed, in some one or more particulars, from the exact words used in the statute authorizing it to be taken. It has been the uniform object of our courts to support bonds executed under the provisions of ■law, where, by a reasonable interpretation, such bonds can be made ■to meet the intention for which they were required and taken. Where the party has had all the advantages of making the bond, ■the court can not aid him to avoid its obligations, by adopting .strained and rigid maxims of construction.

Judgment must be given for the plaintiff.