[After stating the facts as above.]—There were various other questions raised upon the argument of the appeal in this action, but 1 do not consider it necessary to discuss any others than those mentioned in the foregoing statement.
The learned judge before whom this case was tried erred in refusing to charge the jury, when requested by the defendant, that the undertaking signed by Bouton was not approved by the court.
There is no evidence that the judge ever approved of Bouton as surety; the simple fact of his swearing before the judge to his justification does not raise any presumption that the court knew anything about the contents of his deposition, or that his sufficiency was acted upon by the court in any way; and if the jury supposed, as they may well have done, that the swearing by Bouton to his justification before the judge was equivalent to an acceptance of Bouton as a surety by the judge, it may have had great influence in determining the question before them.
But there is a question of much greater importance which is presented. It must be conceded, and it was assumed upon the trial, that by his failure to justify, Courteille, the co-surety, was discharged from all liability upon the undertaking sued *29upon, and it must be admitted that the filing of the undertakings sued upon under the circumstances operated in no way as a stay of the proceedings of the plaintiffs in the actions in the marine court, because the undertakings were executed and filed pursuant to an order, made upon a motion for a stay of proceedings, which provided that the undertakings should not operate as a stay until the justification of the sureties and the approval of the undertakings by one of the justices.
The undertaking executed by Bouton and Courteille was joint and not several, and as soon as one surety was discharged from liability, the other was equally so, unless the plaintiffs in the actions have sustained some damage by the giving of the undertakings, which it is clear that they did not do in this case, as they could not operate as a stay until justification and approval.
The plaintiffs in those actions were not bound to except to the sufficiency of the sureties on the undertakings in order to entitle them to a justification. The undertakings were to be of no effect until justification and approval; and if the plaintiffs did not attend at the time appointed for the justification, and the sureties did not justify, and the undertaking was not actually approved by the court, the undertakings did not in any way operate as a stay, and became a nullity.
That Bouton was not considered as held upon the old undertaking is very strongly evidenced by the order of March 19, which provided that upon the justification of the new surety new undertakings should be executed and filed with the clerk. It is claimed that this applies to a new undertaking to be executed by the new surety; but this limited construction cannot prevail, because it would follow that the new surety must execute a new undertaking or he would not be bound, and the court, in speaking of such an undertaking, would have said: and an additional undertaking should then be executed, &c.; but in order that there should be no mistake about wh^,t was to be done, the court says, that new undertakings should be executed. If they were new, they were to be in contradistinction to something old, and the clear import of the language is that the new was to take the place of the old. Another very pregnant fact *30in this case is that new undertakings were given, in this case executed by two sureties who each justified in an amount amply sufficient to comply with the requirements of the first order made, and these undertakings were approved by the judge after justification before the court, and further, that the original order requires that there should be one undertaking in each action executed to procure a stay, each executed by two sureties. Two undertakings executed by three sureties was no compliance with this order.
Because of the failure of Courteille to justify and the failure of the court to approve the undertakings required by the order to entitle the defendant to any advantage under the undertaking, Bouton never became liable upon them; but it, is sought to hold him by a parol agreement that he would consider himself bound. As lie could not be bound originally as surety except in writing, it is difficult to see how he could become bound by parol upon an undertaking from all liability upon which he had been discharged by operation of law. Such an agreement to become bound would be clearly within the statute of frauds, and void.
Further, the learned judge who tried this cause charged the jury that unless they found an agreement to release him from responsibility, Bouton remained bound. I cannot but think that here was error. The evidence showed that Bouton was presumptively discharged. No act was ever done which ever entitled the defendant in the marine court judgments to any stay whatever because of the undertakings signed by Bouton. The co-surety of Bouton, Courteille, had become discharged because of failure to justify, and Bouton had the right to. claim the joint liability of his ,co-surety as a condition of his obligation. That was the undertaking he signed, and no other, and that undertaking cannot be made several by parol.
For the reasons above stated, I am of the opinion that the judgment should be reversed and a new trial ordered, with costs to abide the event.
Charles P. Daly, Ch. J., and Larremore, J., concurred in the result.
*31Judgment reversed and new trial ordered, with costs to abide the event.