Hosmer, Ch. J.
The principle of the defence set up to this action, is simply this ; that the judgment recovered by Lewis S. Lockwood was not only a final judgment as contradistin-guished from one that is interlocutory, but was the final judgment, which fulfilled the stipulation of the recognizance ; and by recovering it, that he, within the true intent and meaning of the defendant’s contract, had prosecuted his appeal to effect, and made his plea good. On the other hand, the plaintiff insists, that it was not the final judgment on which the recognizance was suspended ; but that both by the letter and spirit of the contract, the judgment referred to in the bond, was the last or ultimate final judgment in the suit.
The construction of the contract advanced by the plaintiff, is, in my opinion, correct. This will appear from the words of the contract, construed with reference to its subject matter. It will be my purpose to establish this proposition, and then to answer the analogies, determinations and supposed consequences of the construction urged by the defendant.
1. In the first place, what is the fair intendment of the recognizance arising from its words ? Before my answer is given to this question, I observe, that the defendant is a surety, and as such is never answerable beyond the clear scope of his engagement. Ludlow v. Simond, 2 Caines Ca. Err. 1. Elmendorph v. Tappen & al. 5 Johns. Rep. 176. Walsh & Beekman v. Bailie, 10 Johns. Rep. 180. Wright v. Russell, 3 Wils. 530. 2 Wms. Saund. 415. n. (5). Smedes v. The Utica Bank, 20 Johns. Rep. 372. 383. But to the extent of his contract, expounded by the expressions employed and the object intended, he is responsible.
I further remark, that neither from my own experience, nor from enquiries made of others, do I find, that there has been any practical exposition of the matter in question.
The words of the recognizance, taken in their established popular meaning, are clear and unambiguous. The bond was broken, if the appellant did not prosecute his appeal to effect, and make his plea good. The word plea, as used, is obviously [436] Commensurate with the term defence; in converting the nega. tive stipulation into its correspondent affirmative, it necessarily comprises this position; that the appellant shall effectually prosecute his appeal. In other words, that at the final termination of the controversy between the parties, he shall be successful in his defence ; — not that at some period of the contest, he shall obtain a judgment, erroneously and againstthe merits of his case, which shall appear to be final, in the strict sense of the term, but that ultimately his defence shall be crowned with success.
The words, unquestionably, reach to this extent; and their construction is made indisputable, by two clearly established principles. The first of them is, that if there be any ambiguity, the words of a contract shall be expounded most strongly againstthe contractor. Verba fortius accipiuntur contra prof-erentem. But without a recurrence to this principle, the result will be the same. It is well established as a rule of construction, that an indefinite or general expression, shall be understood universally, or according to the full latitude of its terms, unless restrained by some special subsequent words, or by the subject matter of the contract. Co. Litt. 42. Shep. Touch.88. 1 Sw. Dig. 226. Now, the stipulation in the recognizance is general and indefinite ; the full latitude of its terms alludes to and embraces the last or ultimate final judgment in the suit; it is not restrained by any subsequent words ; nor, as I shall show hereafter, by the subject matter of the engagement. A limitation of the meaning may be supposed, on a principle not contended for; and that is, that after a new trial is granted, the original suit, in contemplation of law, is at an end, and a new suit is substituted. But the opposite of this is true. A new trial vacates the judgment complained of, and puts the parties in the state, in which they were, immediately before the judgment was rendered ; and this is its whole effect. The original suit is entered in the docket, and the first and only cause of action, on the first and only writ, is tried again, at a future day. By the operation of the new trial, the cause, in contemplation of law, is precisely in the same condition, as if no judgment had ever been rendered ; so that the action is, in no sense, new, but is identically the original suit. Fleming exr. of McDonald v. Lord, 1 Root 214. Magill v. Lyman & al. 6 Conn. Rep. 59. Lyman v. Magill, 6 Conn. Rep. 69. The error is extirpated, and every thing else is in statu quo.
[437]*4372. The extent of the words being unquestionable, I will now consider the recognizance, in reference to its subject matter. What was the object of the parties ; or in other words, what was the spirit and intent of the contract ? I answer; it was security for all the costs that should arise, by reason of the appeal, and until the termination of the plaintiff’s suit.
This is proved, by the expression of the contract, already discussed ; the most convincing evidence of the intent.
It is equally established, by the reason and nature of the case. By a judgment against the appellant, he, prima facie, was a debtor, and in the sum assessed ; and the legislature have thought it unreasonable, that the judgment debtor should be allowed an appeal, and a rehearing, without giving bonds to secure to the adverse party, his costs of suit. A recognizance suspended on the condition, that the appellant should prosecute his suit to a temporary effect, and that, at some period of the cause, he should erroneously obtain a final judgment in his favour, that would not be the ultimate termination of it, would almost seem ludicrous. It is admitted to have been the right of the plaintiff to demand, and the duty of the appellant to give, security for the costs, if the plaintiff should prevail against him. But if his recognizance was to secure any costs to the plaintiff, what reason can be assigned, why the whole costs, at the termination of the controversy, should not be made sure? All the costs are within the same reason. The reason was, that the plaintiff should be dragged no farther in controversy, unless his costs were made secure. Less than this, would not attain the only conceivable object of requiring bonds ; for, there is the same reason for security of the whole of the costs, that there is, for the security of part of them. And that a judgment rendered for the appellant, and afterwards set aside for error, because it never ought to have been rendered ; that this nullity in law, which was always unjust, and against the merits of the case, should be followed up, by stripping the injured plaintiff of his security, and giving an important benefit to the appellant, is peculiarly unfounded. Not less strange does it appear, that a recognizance to secure the plaintiff his costs, should be suspended, by the parties, on an event, to happen in the midst of their controversy ; and not at its termination. It is said for the defendant, that it would be unjust to hold him responsible, after he had once obtained a final judgment in his favour ; and that, therefore, such a construction of the recognizance, would be irrational. If, said he, I am held beyond this period, so [438] that at any time within three years, a new trial is obtained, and judgment for the plaintiff, my security, if I ever had any, is gone. The property, for instance, delivered to me for my indemnity, is given up, and however reluctant I might be, I was bound to surrender it; and even if there was no actual security given, my responsibility, is unjustly prolonged.
This, the principal argument of the defendant, admits of two obvious and sufficient answers.
The first is, that the person recognizing, never need be in the condition supposed. He can always guard himself, by a competent indemnity. If he is unwilling to confide in the personal responsibility of his principal, he may demand property, with such stipulations as will effectually protect him, until the possibility of damage has passed by. The indemnity, if taken out of his hands, is occasioned by his own neglect, by his not guarding himself, and subjecting it to a lien, until the three years have elapsed. There is neither impossibility nor difficulty in the case.
I reply, secondly, that the contract and condition of the defendant, are altogether voluntary. He foresaw the legal possibility of the facts, which have happened in this case, and entered into a recognizance, on such security as he pleased. It is a law maxim, Volenti non fit injuria. In the case of ex parte Garland, (10 Ves. jun. 110.) in which the inconveniences to an executor, authorized by last will to carry on a partnership, were strongly pressed, and admitted by Lord Eldon; he contented himself with this, as a conclusive answer, that he voluntarily put himself in such condition. The same principle was adopted, and by this Court applied, in a similar manner, in Pitkin v. Pitkin & al. 7 Conn. Rep. 307. There is, then, no hardship in the case ; as the bondsman has the full benefit of his contract, and is subjected only to his voluntary engagement.
To the supposed consequences pressed on the defendant’s part, let the effect of the construction advanced by him, on the plaintiff, and on others in like situation, be attended to. In the first place, the plaintiff has taken all the security the law admits, by the acceptance of a recognizance, expressed in the most sweeping and unlimited terms. Now, if a final judgment, set aside and not ultimately final, extinguishes the bond ; a judgment erroneous, against the merits of the case, and for that reason vacated ; the plaintiff is unjustly deprived of the secu[439] rity, for which the recognizance was given. He has been subjected to great costs ; the appellant is a bankrupt; the plaintiff ever had a just cause of action, and by error only had it doubted, for a short time ; and yet of his security he is utterly defeated ! What construction can be more hard and unjust ?
When the general operation of the defendant’s principle of exposition is regarded, it becomes thé more exceptionable. It applies to bonds for prosecution in all cases, whether given by a plaintiff in commencing his suit, or by an appellant. On the principle advanced by the defendant, if the plaintiff recover a final judgment in the superior court, which is afterwards vacated for error, the defendant has lost his security for costs. The doctrine, for aught that I can see, is equally applicable to motions for new trials, as to petitions. By our practice, judgment is not suspended, as it is in England and elsewhere, by a motion for a new trial; (3 Bla. Comm. 387, 395. 2 Tidd’s Prac. 813. & seq.) but final judgment is first actually rendered, and after this, the motion is allowed. Hence, by a general rule of this Court, of June 1810, (4 Day 468.) execution only is stayed; and by the rule of July 1809, (4 Day 120.) if a new trial is not granted, interest is directed to be computed on the judgment already rendered. Now, if a final judgment, although afterwards vacated on motion, extinguishes a bond for prosecution, it is easy to perceive, that the consequences may be both extensive and pernicious.
On the whole, I entertain no doubt that the argument ab in-convenienti, derived from the hardship of the construction, greatly preponderates against the defendant. I am also of opinion, that this consideration has been pressed altogether beyond its proper bearing. Jura adaptantur ad ea quce fre-quentius accidunt. The question discussed will seldom arise. In my experience and observation, it never has arisen, until the present case.
3. I will now attend to the analogies and decisions, on which the defendant has placed reliance.
The determinations regarding special bail, have been first referred, to ; and an analogy between these and bonds and recognizances for prosecution, has been much insisted on. In this state, it has been decided, that an erroneous judgment reversed for error, or annulled by the granting of a new trial, is the final judgment for the exoneration of bail. Fleming, ex’r. of McDonald v. Lord, 1 Root 214. Butler v. Bissel, 1 Root, 102. 2 Swift's Syst. 175, 6.
[440] The law I admit; but the analogy I deny. What is meant j^y an ana]0gOUS determination ? Not merelya remote resemblance, but such a real similitude, that the cases compared stand on the same reason. In comparing recognizances for prosecution, whether of an action or an appeal, with bail to the action or special bail, the mind is naturally led, first, to consider the expressions in which the respective bonds are conceived. The bondsman for prosecution stipulates, that his principal shall prosecute his action or appeal to effect, and answer all damages, if he fail to make the same good ; while he who becomes special bail, merely contracts, that his principal shall appear in the action and abide final judgment. Tidd’s Pract. Forms 74. The one who binds himself in a recognizance for prosecution, agrees, on a certain event, to pay a sum of money ; but the bail merely agrees to surrender the body.
The words of these bonds are very dissimilar. The great discrimination, however, between the cases, consists in this. The bondsman for prosecution has no indemnity, except what arises out of contract between him and his principal; and the law never interposes to make this security less. But the bail has a legal indemnity ; his principal is presumed to be in his custody ; he may take him when and where he pleases, and detain him or surrender him in court, or into the custody of the sheriff, who has process against him ; or if he believes, that he meditates flight, he may cause him to be imprisoned in the common gaol of the county, and exonerate himself from his obligation. Parker v. Bidwell, 3 Conn. Rep. 84. Ruggles v. Corey, 3 Conn. Rep. 419.
In the event of a final judgment in favour of the principal, he is not, by law, taken out of the custody of his bondsman for prosecution ; for he never was in his custody ; but in such case, the principal is, by law, taken out of the custody of his bail; the string is severed, and the right of the bail over his principal, is at an end.
Here then, is a marked dissimilarity between the cases. The technical final judgment, before the termination of the suit, ought not, in any respect, to impair the right of the bondsman for prosecution ; but by this event, the right of the bail over his principal, is destroyed. He has stipulated to surrender him ; but the law steps in, and makes the surrendering of the principal, by the bail, impossible. After this, the law is not so unjust, as to require of the bail, to perform an impossibility [441] of its own creation, but it effectually protects him, by its established principle; that, “ in all cases, where a condition of a bond, recognizance, &c. is possible at the time of the making of the condition, and before the same can be performed, the condition becomes impossible, by the act of God, or of the law, &c., there the obligation &c. is saved.” Co. Litt. 206. a. 2 Bla. Comm. 341. On this principle, unquestionably, the before cited determinations in favour of bail, are founded.
Now, I ask, where is the analogy? The act of law has taken from the bail iiis security ; but at the same time, has made it unnecessary, by his exoneration. But, in the case of a bond for prosecution, the law has neither taken away, nor impaired the bondsman’s security; and therefore, it has not discharged him from his obligation. There is, then, no analogy, but a marked discrimination between the above cases.
The determinations cited for the defendant, from the state of Massachusetts, have not any bearing on this case. It is true, that they give the meaning of the expression “ final judgment? as used in certain of their statutes. But it must be recollected, that “final judgments, (strictly speaking,) are such as put an end “ to the action (3 Black. Comm. 398.) and yet when they pronounce on the merits of a cause, they are technically final, as contradistinguished from judgments, which are interlocutory, although the cause is not terminated. In this latter sense, the judgment of a county court, on verdict or demurrer, is final; and yet by appeal, the cause is carried up for rehearing, ut res nova. Now, when the expression final judgment, is found in a statute, it is always the subject of enquiry, in which of the two former senses the terms are used. In the cases cited, from the words, the subject matter, the effects and consequences, and in one of them, from the antecedent and now varied expressions of the same law in substance, the court was of opinion, that by final judgment, a judgment technically final was intended, although it did not terminate the cause. To derive any aid from these decisions, it becomes necessary to show, that the reasons and principles of construction were identical with those which apply to this case. Clapp v Bell, 4 Mass. Rep. 99. Swett & al. v. Sullivan, 7 Mass. Rep. 342. Bingham v. Pepoon & al. 9 Mass. Rep. 339. But, on recurrence to the determinations, it will be found, that they are altogether different. I forbear to add to my reasons, a comment on the cases; nor is it necessary. Those who would press the deter[442] minations into their service, are bound to show their applica-bü¡ty to this case, which, in my judgment, cannot be done. For it is certain, that the words final judgment in any law, do not Per se sett^e the enquiry, in which of two established senses, they were used.
With some surprise I have heard the citation of determinations in Westminster-Hall concerning bail in error. On writ of error in England, bail is required, with condition to prosecute the action to effect. It is observable, that the bail is not to pursue to effect all writs of error, which may in future be brought, to revise the same subject; but it expressly is, to prosecute the specific action, in which the bond is given. 2 Tidd’s Pract. 1074. Hence, it is established law, if the judgment of the common pleas is affirmed, on error brought to the king’s bench, or the exchequer chamber, that on a writ of error preferred to the house of lords, the recognizance on the former writ is no security for the costs in the latter; and why ? Because the bond’was given, in so many words, to secure the costs, on the first writ of error only ; and the second and future writ must derive similar security from a new bond, given for that purpose. The question before us, is, whether a final judgment of the superior court, in the technical sense of the terms, which has been vacated for error, and thus effectively struck out of existence, is matter in bar of a judgment, after-wards rendered in the same suit. But the enquiry in Westminster-Hall, in the case s alluded to, was merely this ; whether a bond for prosecution of one suit, was in law, a bond for the prosecution of a future, contingent, and different suit. The question, which of two final judgments in the same suit, the one technically final and reversed, and the other actually final and existing, never occurred in Westminster-Hall. The cases are loto calo different. The English determinations, are alone applicable to cases like the following. A writ of error is brought to the superior court from the determination of the county court, and the judgment below is affirmeA Error is then brought in the Supreme Court of Errors, to revise the decision of the superior court. Now, if a question is made, whether the bond given to prosecute the first writ of error, is a bond for the prosecution of the second writ of error, the law of Westminster-Hall is in point; but it bears in no other direction.
4. The case of Ainsworth v. Peabody, 1 Root, 469. has been [443] cited for the defendant; and I admit, that the opinion thrown out by the court, while the cause was on trial, (for there was no decision,) is in point. The appellant recovered in the case cited, and afterwards a new trial was granted, and final judgment was rendered in favour of the appellee. The court expressed an opinion, that by the first judgment in behalf of the appellant, his bondsman was exonerated, immediately on this, the plaintiff withdrew his action. I cannot consider this case, as possessing any authority. In the first place, there was no determination, but a mere opinion expressed, and apparently with little deliberation. Independent of this, however, the opinion was solely founded on the case of Butler v. Bissell, 1 Root, 202. in which it was held, that bail is exonerated by a final judgment in favour of his principal, although the judgment was afterwards reversed for error. In this case, there was not bail, but a bond for prosecution, neither expressed in the same language as a bail bond is, nor founded on the same reason. The court hastily conceived there was an analogy where no analogy exists ; and from the report it appears, that there was no argument of counsel, and no discussion by the court. I trust it has been shown, that the ground assumed by the court was entirely fallacious.
On the whole, I am clear, that, by the words, and spirit, and intent of the contract, bonds of prosecution are suspended, on the last or ultimate final judgment of the court; that this opinion does not outrun the equity of the case ; that public convenience requires it, inasmuch as the costs of a suit, in the instances prescribed by law, ought to be made secure throughout, and until its termination, especially as the party has done his utmost to secure himself, by taking a bond in the most unlimited and comprehensive terms ; and finally, as the bondsman has given a recognizance, which, in terminis, authorises the plaintiff’s demand.
The plea, therefore, in this case, is, in my view, manifestly insufficient, and the judgment below, erroneous.
Peters, J., though inclined at first to a different opinion, ultimately concurred.