sureties, in which it is not necessary that the appellant should unite. Curtis v. Richards, 9 Cal. 33; Tissot v. Darling, 9 Cal. 278. 12. But, conceding that there is a necessary discrepancy between the condition and the penal portion of the bond, it cannot be set up by the obligors, as the bond would be single; and in a suit thereon the plaintiff would be entitled to the full amount. Swain v. Graves, 8 Cal. 549. 13. Time of filing.-The undertaking on appeal to the Supreme Court must, in all cases, be filed within five days after filing notice of appeal; and the Court has no power to extend the time. Elliott v. Chapman, 15 Cal. 383. 14. Construing sections three hundred and forty-eight and three hundred and thirty-seven of the Practice Act together, they provide that an appeal is not effectual for any purpose, unless an undertaking be filed, or a deposit made with the Clerk within five days after filing the notice; and failure to so file the undertaking, or make the deposit, will be fatal to the appeal, and it must be dismissed. Id. 15. The period of five days fixed by law for filing the undertaking, cannot be abridged by the error or negligence of the appellant; nor can that appellant, by serving a copy of the notice of appeal before the original is filed, keep the respondent watching the Clerk's office to see when it is done. Hastings v. Halleck et al., 10 Cal. 31. 16. If the appellants have been guilty of no laches in perfecting their appeal, the Court may enlarge the time for them to file their bond to entitle them to a stay of proceedings under the statute, and in the meantime order a stay of all proceedings in the inferior Court until the extended period shall have expired: in such case the Court may impose such terms as shall appear proper. Bradley v. Hall, 1 Cal. 199. 17. Effect of filing undertaking.-The perfecting an appeal does not release the lien acquired by docketing the judgment. Low v. Adams, 6 Cal. 277. 18. Where the notice of appeal recites that the appellant appeals both from an order granting a writ of assistance and from an order refusing to set it aside, and the undertaking on appeal stipulates to answer the consequences of the appeal from the former order only: Held, that this order alone will be considered by the Supreme Court. Horn v. Volcano Water Co., 18 Cal. 141. See, also, §§ 353 and 355. 19. The State need not file an undertaking.-Where the people of the State are appellants, it is not necessary to file the usual undertaking on appeal. The People v. Clingan, 5 Cal. 389. 20. Actions on an undertaking on appeal.-Where an appeal is withdrawn or dismissed by consent of both parties, without being called to a final hearing, no action can be maintained on the appeal bond. Osborn v. Hendrickson, 6 Cal. 175. 21. Where, in an action on an appeal bond conditioned to pay the judgment appealed from, if the same should be affirmed by the Appellate Court, it appeared that the judgment appealed from was reversed, with directions to enter a different judgment: Held, that the conditions of such bond were not broken, and that no action would lie thereon. Chase v. Ries, 10 Cal. 517. 22. To enable the assignee of a judgment to sue on the appeal bond filed in the cause, he must have an assignment of the bond. Moses v. Thorne, 6 Cal. 87. 23 Where a surety undertakes that his principal shall pay any judgment to be rendered, etc., the judgment against the principal is conclusive against the surety. Pico v. Webster, 14 Cal. 204. 24. Where an appeal is taken by a party, and, as a condition to give it effect, a bond or undertaking with or by sureties is annexed-the undertaking being executed for the benefit of the appellant-the law presumes that it was executed at his request; and probably no. proof of that fact is requisite in a suit by the surety against the appellant for money paid on account of the suretyship. At all events, very slight proof of such request would be required. Bostic v. Love, 16 Cal. 73. 25. The sureties on an undertaking are entitled to stand on the precise terms of the contract, and there is no way of extending their liability beyond the stipulation to which they have chosen to bind themselves. Tarpey v. Schillenberger, 10 Cal. 390. § 349. Undertaking on appeal from a money judgment. If the appeal be from a judgment or order directing the payment of money, it shall not stay the execution of the judgment or order unless a written undertaking be executed, on the part of the appellant, by two or more sureties, stating their places of residence and occupation, to the effect that they are bound in double the amount named in the judgment or order, that if the judgment or order appealed from, or any part thereof, be affirmed, the appellant shall pay the amount directed to be paid by the judgment or order, or the part of such amount as to which the judgment or order shall be affirmed, if affirmed only in part; and all damages and costs which shall be awarded against the appellant upon the appeal. N. Y. Code, § 335. 1. By the Code, the undertaking on appeal providing for the liabilities of the sureties upon condition of the affirmance of the judgment operates as a stay; and if, by a mere neglect to prosecute the appeal, and for that reason suffering it to be dismissed after the respondent has been deprived of his rights under the judgment by the undertaking, the sureties could be released upon the pretense that the judg ment was not affirmed, it is evident that great injustice would in many instances be perpetrated, and a fraud practiced upon the respondents. Karth v. Light, 15 Cal. 327; Chamberlain v. Reed, 16 Cal. 207. 2. A judgment directing the payment of money out of a fund in Court, is not a judgment directing the payment of money within this section. Curtis v. Leavitt, 10 How. Pr. 481; 1 Abbott Pr. 274. § 350. Appeal from a judgment for delivery of documents. If the judgment or order appealed from direct the assignment or delivery of documents, or personal property, the execution of the judgment or order shall not be stayed by appeal, unless the things required to be assigned or delivered be placed in the custody of such officer or receiver as the Court may appoint; or unless an undertaking be entered into, on the part of the appellant, with at least two sureties, and in such amount as the Court, or the Judge thereof, or County Judge, may direct, to the effect that the appellant will obey the order of the Appellate Court upon the appeal. N. Y. Code, § 336. § 351. Appeal from a judgment directing the execution of a conveyance, etc. If the judgment or order appealed from direct the execution of a conveyance or other instrument, the execution of the judgment or order shall not be stayed by the appeal until the instrument is executed and deposited with the Clerk with whom the judgment or order is entered, to abide the judgment of the Appellate Court. § 352. Undertaking on appeal concerning real pronertu མམ་་་ ༡ mu vatvutor, auministrator, trustee or other peal shall not continue in force on attachment unless an undertaking be executed and filed on the part of the appellant by at least two sureties in double the amount person acting in another's right; provided, that an ap- nit the security required by an executor, administrator, of the debt claimed by him, that the appellant will pay ther's right. me Court on appeal, the judgment not evidence upon the questions at Bowman, 13 Cal. 634. Ending an appeal, though no under 3. An appeal from an order of reference stays the proceedings. Smith v. Pollock, 2 Cal. 92. 4. Where the sureties to an undertaking, on appeal to the Supreme Court, justify in a sum less than double the amount specified in the undertaking, but more than double the amount of three hundred dollars, such undertaking is sufficient, under section three hundred and forty-eight of the Code, though insufficient to stay the issuance of the execution. Mokelumne Hill Co. v. Woodbury, 10 Cal. 185. 5. Where the examination of the sureties does not disclose sufficient property to make the undertaking operate as a stay, but does disclose sufficient to render the appeal effectual, respondent's remedy is by motion in the Court below for leave to proceed on the judgment, notwithstanding the undertaking, and not by motion in the Supreme Court to dismiss the appeal. Dobbins v. Dollarhide, 15 Cal. 374. £ 210 Undertaking on anneal from a money judgment. Amendment to Sec. 349.-Passed April 27th, 1863. § 349. If the appeal be from a judgment or order directing the payment of money, money, it shall not stay the execution of the judgment or order, unless a written undertaking be executed on the part of the appellant, by two or more sureties, stating their places of residence and occupation, to the effect that they are bound in double the amount named in the judgment or order; that if the judgment or order appealed from, or any part thereof, be affirmed. the appellant shall pay the amount directed to be paid by the judg ment or order, or the part of such amount as to which the judgment or order shall be affirmed, if affirmed only in part, and all damages and costs which shall be awarded against the appellant upon the appeal. When the judgment or order appealed from is made payable in a specified kind of money or currency, the undertaking required by this section shall be drawn and made payable in the same kind of money or currency specified in such judgment. required to be assigned or delivered be placed in the custody of such officer or receiver as the Court may appoint; or unless an undertaking be entered into, on the part of the appellant, with at least two sureties, and in such amount as the Court, or the Judge thereof, or County Judge, may direct, to the effect that the appellant will obey the order of the Appellate Court upon the appeal. N. Y. Code, § 336. § 351. Appeal from a judgment directing the execution of a conveyance, etc. If the judgment or order appealed from direct the execution of a conveyance or other instrument, the execution of the judgment or order shall not be stayed by the appeal until the instrument is executed and deposited with the Clerk with whom the judgment or order is entered, to abide the judgment of the Appellate Court. § 352. Undertaking on appeal concerning real property. If the judgment or order appealed from direct the sale, or delivery of possession of real property, the execution of the same shall not be stayed unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant, he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the Judge of the Court by which the judgment was rendered or order made, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency. N. Y. Code, § 338. §353. Stay of proceedings. The security on appeal may be Sec. 338. Whenever an appeal is perfected as provided in the preceding sections in this chapter, it shall stay all further proceedings in the Court below upon etc. the judgment or order appealed from, or upon the, as provided by the preceding an appeal bond on appeal from an order discharging any all further proceedings in the matters embraced therein; and on appeal, and filing attachment or from an order dissolving an injunction, said attachment or injunction shall not be dissolved, r order appealed from, or upon but shall remain in full force until the cause be ais posed of on appeal, but the Court below may proceed the Court below may proceed upon any other matter embraced in the action, and not | affected by the injunctions order appealed from; and the action, and not affected by And the Court below may, appellant is an executor, administrator, trustee or other or limit the security required by the Court below may, in its discretion, dispense with or from. limit the security required by said sections, when the person acting in another's right; provided, that an ap peal shall not continue in force on attachment unless nt is an executor, administrator, an undertaking be executed and filed on the part of the appellant by at least two sureties in double the amount of the debt claimed by him, that the appellant will pay all costs and damages which respondent may sustain another's right. by reason of the attachment, in case the order of the Supreme Court on appeal, the judgment Court below be sustained; and unless, also, notice of the appeal be given within five days after service of the it is not evidence upon the questions at notice of the entry of the order appealed from, and such bury v. Bowman, 13 Cal. 634. mentioned te filed within five days thereafter. appeal be perfected and the undertaking in this section ent, pending an appeal, though no undertaking was given. Ross v. Austil, z al. 193. 3. An appeal from an order of reference stays the proceedings. Smith v. Pollock, 2 Cal. 92. 4. Where the sureties to an undertaking, on appeal to the Supreme Court, justify in a sum less than double the amount specified in the undertaking, but more than double the amount of three hundred dollars, such undertaking is sufficient, under section three hundred and forty-eight of the Code, though insufficient to stay the issuance of the execution. Mokelumne Hill Co. v. Woodbury, 10 Cal. 185. 5. Where the examination of the sureties does not disclose sufficient property to make the undertaking operate as a stay, but does disclose sufficient to render the appeal effectual, respondent's remedy is by motion in the Court below for leave to proceed on the judgment, notwithstanding the undertaking, and not by motion in the Supreme Court to dismiss the appeal. Dobbins v. Dollarhide, 15 Cal. 374. |