Mexican National Const Company v. Reusens/Opinion of the Court

This motion is denied on the authority of Jerome v. M'Carter, 21 Wall. 17. Neither the circumstances of the case, nor of the parties, nor of the sureties on the bond, have changed since the security was taken. All these things are now as they were then. We do not understand the case of Nichols v. MacLean, 98 N. Y. 458, to decide that the guaranty by the Fidelity & Casualty Company of New York, of the undertaking of the Mexican National Construction Company for a discharge of the attachment, is void because signed by one surety, and not by two, but only that it need not have been accepted by the judge as sufficient security. It was accepted, however, and the attachment was discharged. It stands, therefore, as security for the payment of the judgment, and the judge, when he took the supersedeas bond, acted with reference to a judgment which was 'otherwise secured' within the meaning of rule 29, and could be governed accordingly. The present motion is not made because the condition of the Fidelity Company has changed since the security was taken, but because another surety ought to have been required before the attachment was discharged. This was one of the facts existing at the time the security was accepted, and therefore, under the rule in Jerome v. M'Carter, not open to consideration here for the purposes of a review of the action of the judge who fixed the amount. Denied.