There is undoubtedly a difference between an undertaking given to discharge from an arrest and one given upon an appeal from a judgment. One is a substitute for the former bail to the sheriff and special bail (In re Taylor, 7 How. Pr. 212; Steward v. Howard, 15 Barb. 26), and the other is the substitute for the former bail in error (Graham’s Pr. 948; 2 Dunlap Pr. 1138 ; 2 Rev. Stat. 595, §§ 25 to 35), and there were many things which were applicable to the former, that did not apply to the latter ; such as the right of special bail to discharge themselves by surrendering their principal, or the right of one alone to do so, although the other was *397fixed, having been separately sued; the suit against whom went on even after the principal was in custody, upon a surrender by the one who had not been sued (Ballard v. Kibbe, Col. & C. Cases, 56), and there were other distinctions. But these distinctions in no way affect the liability of a party upon a joint obligation or undertaking, and what was decided by this court in Tanneribaum v. Cristalar (5 Daly, 141), and by the Court of Appeals in the recent case of Wood v. Fislc, which were undertakings upon appeal, apply equally to an undertaking upon an arrest, where it is joint and not several.
The appellant states in his points, that special bail were held severally liable, whether the bail piece contained words of severalty or not. He refers to no case for such a proposition, and would find none, for special bail were severally and jointly liable from the nature of their undertaking by the common law, which was very different from a bond or from an undertaking under the Code. Special bail, or more properly bail to the action, or bail alone, was put in by a bail piece, signed by the bail, which was entitled in the court and of the term, which simply declared that A. B. was delivered to bail, on the taking of his body to C. D. and E. F., at the suit of G-. H., in a plea of trespass, &c. The bail then went before the judge, who said to them orally, you jointly and severally undertake that if A. B. shall be condemned in this action, he will pay the costs and the amount adjudged against him, or render himself into custody. Are you content ? and upon their expressing their acquiescence, the bail piece was filed and an entry made of the recognizance (Caines’ Pr. 60, 61; 1 Dunlap Pr. 174; 1 Tidd, 250; 2 Id. 1083, 9th Lond. ed.; Petersdorf on Bail, 289, 290). The effect of this procedure in all cases, was that of a joint and several undertaking, without anything appearing to that effect tip on the bail piece, and an action upon this recognizance might always be brought against the bail jointly or separately (Steward v. Patten, 1 Hall, 40; Ballard v. Kibbe, supra).
The Code simply provides that the defendant when arrested, may give bail by causing a written undertaking to be executed by two or more sufficient bail. As I said before, this was meant to be a substitute, both for bail to the sheriff and bail to the ac*398tion, and by analogy to the former practice, the undertaking should have been joint and several. But it was not. It was an undertaking by which the bail only bound themselves jointly, and this being the case I do not see upon what authority, or by what construction, we can hold that they bound themselves severally as well as jointly. In Sheppard’s Touchstone (p. 375), after the remark that the condition of an obligation is always taken most in the advantage of the obligor and against the obligee, it is said, “ If two, three or more bind themselves in an obligation thus, óbligamas nos, and say no more, the obligation is and shall be taken to be joint only and not several.” Such is the case here. The language of the undertaking is We, J. Oscar Bixbee, Benj. G. Bloss and Jordan Mott, hereby undertake, &c., which is a joint and not a several undertaking by any one of them.
It is conceded that if the obligors were not severally as well as jointly bound, that this action could not be maintained against the executor of Jordan Mott. It is therefore unnecessary to consider the question, and the judgment should be affirmed.
Joseph F. Daly and Yah Hoeseh, JJ., concurred.
Judgment affirmed.*
The judgment here was affirmed by the Court of Appeals, on Feb. 22, 1878.