Green, Judge :
The counsel for the plaintiff in error insists, that, inasmuch as the recital in the condition of the bond sued on is, that “ whereas Toliver Dotts has obtained from the judges of the Supreme Court of Appeals of West Virginia a writ of error to a judgment of the Circuit Court of Ritchie county on the 6th of May, 1879, in a certain case therein pending, in which B. F. Mitchell, sheriff of Ritchie county and administrator of Peter Garrett, was plaintiff, and Toliver Dotts was defend[827]*827ant,” this hond must he regarded as given to perfect a writ of error to the judgment of May 6,1879, and not as given to perfect a writ of error and supersedeas to this judgment; and that the condition of the bond should therefore have been: “ If the said obligors shall well and truly perform and satisfy, in case the said judgment be affirmed or said writ of error be dismissed, all damages, costs and'fees, which may be awarded against or incurred by the said Toliver Dotts, then this obligation to be void; otherwise to remain in full force and virtue; ” but there was improperly inserted in the bond the further and additional obligation, “ to satisfy said judgment, if it should be affirmed, or the writ of error dismissedthat this would have been properly inserted in the condition had a “ supersedeas as well as a writ of error been awarded to this judgment of May 6,1879, but if no superse-deas was awarded to this judgment, then this was a case of an official bond with additional obligations not required by law or by the order of the court directing such official bond to be taken.” And it is insisted that such additional obligation so improperly inserted in the bond can not be enforced but must be regarded as mere surplusage.
Whether such additional obligation, not required by the court ordering the bond to be taken, if voluntarily inserted and not contrary to public policy, could be enforced or should be regarded as surplusage and null and void, was fully considered by this Court in the case of State v. Purcell, supra, 44 (5 S. E. Rep. 301) which was a case, where the court in awarding an injunction required, that, before it should take effect, the plaintiff should execute a bond conditioned for all such costs and damages, as shall be incurred or sustained by Griffith, if the injunction should be dissolved. But in addition to this obligation the injunction-bond required, in case the injunction was dissolved, that the plaintiff should pay any decree or order that may be awarded against him in the suit. After a full examination Judge Woods in an elaborate argument expressed the opinion, that this additional obligation to pay such decree was not surplus-age and could be enforced, if the injunction was dissolved. Judge Johnson concurred in this opinion; but Judge Snyder in an elaborate opinion (page 65), dissented from the [828]*828conclusion; and I expressed the opinion, that, as the judgment to be rendered in this case would be the penalty of the bond, whether this condition received the construction placed on it by Judge Woods or the one given by Judge Snyder, it was not necessary in that case to determine, which was the proper construction, and I therefore declined to express an opinion on this point, involving a very important legal question, which I thought should be left undecided till some case came before us, which required its decision. Its decision would be involved in this case before us now, if it were true, as insisted by the counsel for the plaintiff in error, that the bond sued on was a bond, which we must regard as given on a writ of error only, and not as given on the awarding of a writ of error and supersedeas. But I regard the bond sued on as given on a writ of error and super-sedeas being awarded; and, if this be so, its condition was a proper one, and there was not any additional obligation improperly added to the condition of the bond; and of course the question discussed in State v. Purcell does not arise in this case.
The question then to^be considered in this caséis: Was the bond sued on given to carry into effect a simple writ of error, or was it given to carry into effect a writ of error and supersedeas ? The counsel for the plaintiff in error insists, that the recital in the condition of the bond, that Toliver Dotts has obtained a writ of error to the judgment of the Circuit Court of Ritchie county “ settles this question and conclusively shows, that a writ of error only was obtained to this judgment, and this bond was given to perfect such writ of error.” It is certainly true, that a recital of an explanatory fact in the condition of a bond is to be taken as a conclusive admission of it; and that, if necessary, such admission of a particular fact will be held to restrain the operation-of the terms of the condition, although they may imply a larger liability than would consist with the words of the recital. See Payler v. Homersham, 4 Maule & S. 425; Pearsall v. Summersett, 4 Taunt. 593; Bennehan v. Webb, 6 Ired. 57. The reason of this rule of construction, as appears from these cases, is, as said by Lord Ellenborough in the first .of the cases: “ In order to construe any instrument truly, [829]*829yon must have regard to all its parts and most especially to the particular words of it.” This reasoning leads to another rule: “that the language of the condition is to be taken into consideration.” And hence, if a particular fact is recited in the condition of a bond, and another fact not inconsistent with the fact stated in the recital proper of the condition is stated as existing, this second fact must be regarded in construing the bond; and it would seem proper to construe it just as though both facts had been set out in their proper place, — the recitals in the condition of the bond.
Thus in the case before us the recital preceding the condition in the bond sued on states, that a writ of error has been obtained from the Supreme Court of Appeals of West Virginia to a certain judgment, and in the condition itself it is stated, “that proceedings on'this judgment have been stayed.” Thus the condition of this bond shows, that when executed there had not only been granted by the Supreme Court of Appeals a writ of error to said judgment but also a supersedeas- They may have been granted at different times, but obviously both had been granted; and as the condition of this bond is the precise condition, which the statute-law requires to be given to give effect to a writ of error and supersedeas-, and is materially different from that required to be given to give effect to a writ of error, the conclusion seems necessary, that the bond was given to put into effect a writ of error and supersedeas, and not simply a writ of error; and this conclusion does not contradict the recital preceding the condition of the bond. That, it is true, simply recites, that a writ of error had been awarded to this judgment. But that is entirely consistent with the awarding at the subsequent or same term a writ of supersedeas. And in fact the condition subsequently shows, that a writ of supersdeas was awarded before this bond was given.
In the case of Bank v. Willard, 10 N. H.
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Green, Judge :
The counsel for the plaintiff in error insists, that, inasmuch as the recital in the condition of the bond sued on is, that “ whereas Toliver Dotts has obtained from the judges of the Supreme Court of Appeals of West Virginia a writ of error to a judgment of the Circuit Court of Ritchie county on the 6th of May, 1879, in a certain case therein pending, in which B. F. Mitchell, sheriff of Ritchie county and administrator of Peter Garrett, was plaintiff, and Toliver Dotts was defend[827]*827ant,” this hond must he regarded as given to perfect a writ of error to the judgment of May 6,1879, and not as given to perfect a writ of error and supersedeas to this judgment; and that the condition of the bond should therefore have been: “ If the said obligors shall well and truly perform and satisfy, in case the said judgment be affirmed or said writ of error be dismissed, all damages, costs and'fees, which may be awarded against or incurred by the said Toliver Dotts, then this obligation to be void; otherwise to remain in full force and virtue; ” but there was improperly inserted in the bond the further and additional obligation, “ to satisfy said judgment, if it should be affirmed, or the writ of error dismissedthat this would have been properly inserted in the condition had a “ supersedeas as well as a writ of error been awarded to this judgment of May 6,1879, but if no superse-deas was awarded to this judgment, then this was a case of an official bond with additional obligations not required by law or by the order of the court directing such official bond to be taken.” And it is insisted that such additional obligation so improperly inserted in the bond can not be enforced but must be regarded as mere surplusage.
Whether such additional obligation, not required by the court ordering the bond to be taken, if voluntarily inserted and not contrary to public policy, could be enforced or should be regarded as surplusage and null and void, was fully considered by this Court in the case of State v. Purcell, supra, 44 (5 S. E. Rep. 301) which was a case, where the court in awarding an injunction required, that, before it should take effect, the plaintiff should execute a bond conditioned for all such costs and damages, as shall be incurred or sustained by Griffith, if the injunction should be dissolved. But in addition to this obligation the injunction-bond required, in case the injunction was dissolved, that the plaintiff should pay any decree or order that may be awarded against him in the suit. After a full examination Judge Woods in an elaborate argument expressed the opinion, that this additional obligation to pay such decree was not surplus-age and could be enforced, if the injunction was dissolved. Judge Johnson concurred in this opinion; but Judge Snyder in an elaborate opinion (page 65), dissented from the [828]*828conclusion; and I expressed the opinion, that, as the judgment to be rendered in this case would be the penalty of the bond, whether this condition received the construction placed on it by Judge Woods or the one given by Judge Snyder, it was not necessary in that case to determine, which was the proper construction, and I therefore declined to express an opinion on this point, involving a very important legal question, which I thought should be left undecided till some case came before us, which required its decision. Its decision would be involved in this case before us now, if it were true, as insisted by the counsel for the plaintiff in error, that the bond sued on was a bond, which we must regard as given on a writ of error only, and not as given on the awarding of a writ of error and supersedeas. But I regard the bond sued on as given on a writ of error and super-sedeas being awarded; and, if this be so, its condition was a proper one, and there was not any additional obligation improperly added to the condition of the bond; and of course the question discussed in State v. Purcell does not arise in this case.
The question then to^be considered in this caséis: Was the bond sued on given to carry into effect a simple writ of error, or was it given to carry into effect a writ of error and supersedeas ? The counsel for the plaintiff in error insists, that the recital in the condition of the bond, that Toliver Dotts has obtained a writ of error to the judgment of the Circuit Court of Ritchie county “ settles this question and conclusively shows, that a writ of error only was obtained to this judgment, and this bond was given to perfect such writ of error.” It is certainly true, that a recital of an explanatory fact in the condition of a bond is to be taken as a conclusive admission of it; and that, if necessary, such admission of a particular fact will be held to restrain the operation-of the terms of the condition, although they may imply a larger liability than would consist with the words of the recital. See Payler v. Homersham, 4 Maule & S. 425; Pearsall v. Summersett, 4 Taunt. 593; Bennehan v. Webb, 6 Ired. 57. The reason of this rule of construction, as appears from these cases, is, as said by Lord Ellenborough in the first .of the cases: “ In order to construe any instrument truly, [829]*829yon must have regard to all its parts and most especially to the particular words of it.” This reasoning leads to another rule: “that the language of the condition is to be taken into consideration.” And hence, if a particular fact is recited in the condition of a bond, and another fact not inconsistent with the fact stated in the recital proper of the condition is stated as existing, this second fact must be regarded in construing the bond; and it would seem proper to construe it just as though both facts had been set out in their proper place, — the recitals in the condition of the bond.
Thus in the case before us the recital preceding the condition in the bond sued on states, that a writ of error has been obtained from the Supreme Court of Appeals of West Virginia to a certain judgment, and in the condition itself it is stated, “that proceedings on'this judgment have been stayed.” Thus the condition of this bond shows, that when executed there had not only been granted by the Supreme Court of Appeals a writ of error to said judgment but also a supersedeas- They may have been granted at different times, but obviously both had been granted; and as the condition of this bond is the precise condition, which the statute-law requires to be given to give effect to a writ of error and supersedeas-, and is materially different from that required to be given to give effect to a writ of error, the conclusion seems necessary, that the bond was given to put into effect a writ of error and supersedeas, and not simply a writ of error; and this conclusion does not contradict the recital preceding the condition of the bond. That, it is true, simply recites, that a writ of error had been awarded to this judgment. But that is entirely consistent with the awarding at the subsequent or same term a writ of supersedeas. And in fact the condition subsequently shows, that a writ of supersdeas was awarded before this bond was given.
In the case of Bank v. Willard, 10 N. H. 210, it is held, that a bond with a condition to indemnify bank against loss by reason of advances to a certain party, though the recitals of the condition seemed to limit the object to the payment of bills or notes' thereafter to be discounted, yet, because in the condition the words “ so discounted or which may be discounted,” were used, was intended to indemnify against [830]*830existing as well as future liabilities. If my conclusion is right, that the bond sued on in the case before us was a bond given to put into eífect a writ of error and supersedeas to the judgment mentioned in it, then there can be no controversy, that the obligors in this bond were liable upon it for the amount of said judgment as well as the damages, costs and fees awarded against Toliver Dotts or incurred by him, when his writ of error was dismissed This was the conclusion of the court below; and the final judgment in this case, to which a writ of error has been awarded, is based obviously on this view of the legal effect of this obligation.
There were however some questions raised in the court below with reference to the pleadings. The special plea of the defendant was objected to by the plaintiff, and the amended declaration of the' plaintiff was demurred to by the defendant. The pleadings in this case might have been made more perfect. The real question in controversy between the parties was, whether the conditional bond dated May 2,1884, and acknowledged before the clerk of the Circuit Court of Ritchie county, was to be regarded as binding the obligors in it only to the extent, that they would be bound by a legal bond given to make effective a writ of error to the judgment named in it, or whether the obligors in this bond were also bound to perform and satisfy the judgment.
If my conclusion is right, that the bond sued on in the case before us was a bond given to put into effect a writ of error and supersedeas to the judgment mentioned in the bond, the defendant could have raised this question, whether this bond was given to give effect to a writ of error only or to a writ of error and supersedeas to this judgment, by pleading directly, that the order of the Supreme Court of Appeals was an order granting a writ of error only to said judgment; or the plaintiff could have raised this question by alleging as a matter of fact in his declaration, that this bond was given before the clerk of the Circuit Court of Ritchie county under an order of the Supreme Court of Appeals awarding a writ of error and supersedeas-, and no't a writ of error only to said judgment. That the question involved in this cáse could have been properly presented in this form of [831]*831pleading appears in the case of Payler v. Homersham, 4 Maule & S. 423, where the condition of the bond being as in the case before us ambiguous on its face, its true meaning was explained by the allegations in the pleadings of certain facts not clearly appearing on the face of the bond or its condition as actually existing. But, while it would have been better for the pleadings to have assumed this form, yet it was optional with the parties to thus put directly in issue the question, whether the bond sued on was a bond given on a writ of error only or on a writ of error and super-sedeas. The plaintiff had a right, if he thought the bond on its face showed, that it was given on a writ of error and supersedeas, to sue upon it and set forth the bond and its condition and allege breach of the condition without alleging, what was the special occasion of the giving of the bond. This was the character of the declaration in Payler v. Homersham. The demurrer to the amended declaration was therefore properly overruled.
The special plea of the defendants, that, when this bond sued on was executed, the principal, Toliver Dotts, was wholly and totally insolvent, and nothing could thereafter have been made from him or his estate by legal process on said judgment, ought to have been rejected by the court below, for the reason that it set out no defence to the plaintiff’s action or any part thereof. But of course the defendant below, Thomas E. Davis, was not prejudiced by this error of the court below, and he can not complain of it in this Court.
I am for these reasons of opinion, that there was no error in the final judgment of the Circuit Court of Ritchie county, that the plaintiff recover against the defendants, Toliver Dotts and Thomas E. Davis, the sum of $1,186.51 with interest thereon from November 8,1887, and $243.00 costs of this suit. Nor is there any error in the refusal of the court to set aside this judgment and grant a new trial on the motion of the defendants below.
This judgment of the court below as well as the overruling of said motion is therefore affirmed; and the plaintiff in error must pay to the defendant in error, Henry Garrett, administrator de bonis non of l’eter Garrett deceased, his [832]*832costs in this Court expended and damages according to law.
AEEIRMED.