At the October term, 1868, of the chancery court, the defendant was granted a continuance of the cause, and leave to examine additional witnesses, on condition that he would execute, with security, a bond to pay to the complainant whatever sum of money should be decreed to her on the final hearing. In pursuance of this order, he gave the bond, stipulating in it that the court should render judgment against any or all of the obligors, whenever an execution against Dudley, or his personal representative, should be returned unsatisfied. After that time, Dudley died, and his administrator was made a party defendant in his place. The administrator filed a cross-bill, alleging that the estate of his intestate was insolvent, and praying that the court would ratify or confirm the decree of the probate court to this effect, and transfer the final settlement of the estate to the chancery court. The cross-bill was demurred to, for want of equity. There was an agreement of counsel, touching the amount for which a decree against the defendants should be rendered, if the demurrer to the cross-bill were sustained. The chancellor sustained the demurrer, decreed the land, the original and main foundation of the suit, to be the property of the complainant, awarded the amount agreed on, as damages for its detention, and ordered a formal issue of execution against the estate of John Dudley, so as to effect a literal compliance with, the terms of the bond. This execution was not to be enforced against the laws governing the settlement of insolvent estates ; but its return of no property was to be the support of an execution against the obligors of the bond, which was directed. An appeal is taken by the administrator from the dismissal of his cross-bill, and the refusal of the court to order the decree to be certified to the probate court; and by all of the defendants, from the general decree.
When this cause was last before this court (Dudley v. Witter, 46 Ala. 664), one of the issues made was the authority of the court to exact the bond as a condition of the continuance. It was then considered material that the defendant rested his objection solely on the power of the court to impose such terms, and alleged no special ground of hardship, or abuse of judicial discretion. None is averred now, and the contingency against which the chancellor evidently intended to protect the rights of the complainant, the insolvency of Dudley, has intervened.
The administrator of Dudley is not injured by the decree, because the liability of his intestate is in no respect increased by the requisition of the bond; and his own obligation to the probate court is not brought into collision with the decree, by reason of its guarded terms. Under the proof of the insolvency of Dudley’s estate, no execution against his representa*464tive was really necessaiy. The certification of the decree to the probate court was the right of the complainant. The bondsmen have an independent right to file it as a claim against the insolvent estate, when they become entitled to do so.
Note by Reporter-. — The appellant’s counsel having filed an application for a rehearing, on the points and authorities shown by their brief, supra, the following opinion was delivered in response to it: —All of the appellants cannot make the objection that Mrs. Reese is a married woman, and therefore not subject to a judgment against her, as one of the obligors of the bond. Her coverture is her personal defence ; and one of the terms of their contract is, that judgment might be given against any one or more of them. They voluntarily executed the agreement, and show no reason whatever why it should not be enforced. It is supported by a consideration of detriment to the complainant, and may also be sustained by an element of advantage to themselves, as they seem to be the distributees of the defendant Dudley’s estate, which is only insolvent on account of this judgment.
It is objected, that judgment and execution were given against the sureties on the continuance bond, without notice to them. Their contract was not absolute, for a sum certain, but an undertaking to the amount of that which should be decreed against their principal. It was approved by the register, and though, perhaps, not taken during the term of the court, it was given in compliance with the order of the court, and in the enjoyment of the benefit for which it was required. The suit was pending, and they agreed to abide its result. There is no difference in principle between their obligation and that by which bail is bound. The judgment against their principal was conclusive against them. Bent v. Baker, 44 Law Library, 81; Niles v. Brackett, 15 Mass. 378; Atwood v. Wright, 29 Ala. 346, 351. The decree is affirmed.
SAFFOLD, J.In the application for rehearing, two general points are presented : 1st, The jurisdiction of the chancery court to render judgment against the obligors on the bond given for the continuance. 2d, The rendition of such judgment without formal notice to the obligors.
The bond, though actually executed in vacation, was so done in compliance with the terms of continuance prescribed by the court. Such execution was but the delay of accommodation to the defendant, and was, in legal contemplation, performed immediately upon the grant of the continuance. The court had juris*465diction to render such judgment as it did against the defendant. He interrupted the progress of the cause, by asking delay, for purposes which he deemed valuable to himself. The court, in granting them, required him to protect the complainant from detriment on account of it. His sureties voluntarily came into court, made themselves parties to the proceeding, and agreed to become subject to whatever judgment was rendered against their principal. Jurisdiction of the subject-matter belonged to the court against the defendant. The sureties waived notice, by making themselves parties. The giving of the bond was an incident of the suit. They do not deny its execution. The judgment against them was rendered in pursuance of their agreement. Of what have they a right to complain ?•
The same question of want of notice has been raised and discussed, again and again, since the institution of writ-of-error bonds, security for costs, and the like. The issue of execution against the defendant, and its return of “no property,” stipulated in the bond, was but the means agreed upon for ascertaining his insolvency. This was made known to the court by exhibition of the decree of insolvency of his estate in the probate court. His death was not contemplated when the bond, was executed. There was no virtue in the return of the execution “ no property.” The court must deal with substance* not with form.
The request of the defendant for a continuance; the order granting it on terms ; the compliance with those terms by making the bond as required, were allegation, answer, and proof. We do not approve of granting continuances on condition of giving security for the debt. It tends to the incurring of speculative liability. The hopes of suitors, who generally would not continue the litigation if they did not believe they had a good case, may induce them to take injurious risks. It is better to grant or decline the continuance upon the showing made. But we cannot say the court has no jurisdiction to impose even such terms; and if to impose them, then certainly to enforce them. In the present case, the complainant would surely have lost the fruit of her years of litigation, without hope on: the part of the defendant at the time of the continuance, if the chancellor had not required him to give this bond. It was properly exacted, as his subsequent insolvency abundantly shows. A rehearing is denied.