The action is upon an appeal bond given to enable the defendant, Mrs. Oobb, to obtain a suspensive appeal from an order made in the suit of Mrs. Cobb v. Parham & Lowry. The circumstances were these: Mrs. Oobb and Lowry being joint owners of an estate called the Buckhorn Plantation, and being engaged in a litigation respecting their partnership affairs, submitted their difficulties to arbitrators, who made an award divesting the possession of both proprietors, and putting the estate in the hands of Parham, to be adminis*424tered for the benefit of both, according to the provisions of the award. In violation of this compact, Mrs. Gobb got out an injunction, and by means thereof, succeeded in ousting the receiver and getting the estate into her own hands. Parham and Lowry obtained, on rule, an order dissolving the injunction and reinstating Parham, upon condition of giving a bond in the sum of $62,600. The purpose of that bond was to secure Mrs. Gobb the restoration of the plantation and crops that might be gathered, pending the suit, if she should ulti• mately succeed in maintaining it. Its amount was fixed by the Judge at $62,600, upon evidence estimating the slaves at $45,000, the annual crops at $12,000, the teams and stock at $3,000, and the corn crop at $2,600. This order was made in the month of April, 1848, and the amount of the bond was a very proper one, considering that Pwrham would probably gather the crops of 1848, before the decision of the cause, besides having possession of the slaves, stock, &c., a species of property liable to be carried off during the litigation. The object of Mrs. Gobb in asking a suspensive appeal from this order restoring Parham's possession, was to keep the property and crops in her own hands ; and the court in granting it, prescribed the very same sum, $62,500, as the amount of her appeal bond in favor of Lowry and Parham, for a suspen-sive appeal, fixing $100 as .the the amount of the bond if she took only a devo-lutive appeal. This appeal came before the Supreme Court in 1849. The court was of opinion that the conditional order of dissolution was properly rendered, and that a suspensive appeal should not have been allowed; and by its decree the appeal was dismissed. See 4th Annual, 147. At the same time, the court also affirmed a decree dissolving Mrs. Gobb's injunction after a hearing on the merits. Ib. 148.
It is said the sureties on this appeal bond are not liable for the value of one-half of the crop of 1848, which, during the pendency of the appeal, Mrs. Gobb gathered and converted to her own use.
The bond, which we have already stated, was for $62,500, refers in its condition to the order authorizing Lowry and Pa/rhmn to bond and the order of suspensive appeal taken from it, which order may be fairly considered as embodied in the bond, and as entering directly into the contemplation of the sureties; and the condition then goes on to say “if the said Sarah M. G. Gobb shall prosecute her said appeal, and shall satisfy whatever judgment may be rendered against her by the said Supreme Court on said appeal; or if the same shall be satisfied by the proceeds of the sale of her estate, real or personal, if she be cast in her said appeal, then this obligation to be void, otherwise to remain in full force and virtue.” The decree of the Supreme Court was in these words: “ It is therefore ordered, adjudged and decreed, that the appeal taken in this case be dismissed at the appellant’s costs.”
This decree was substantially an affirmance of the order to bond, as being a lawful order and one from which an appeal should not have been asked nor granted; and under it, I think, the principal and sureties were answerable to Parham and Lowry for the restoration, not only of the land, slaves and stock, but of the crops. All these were comprehended in the order, and must be considered, under the circumstances, as clearly entering into the contemplation of the sureties at the time they added their faith to that of their principal, and enabled her by doing so to obtain the suspensive appeal from that order. Under the terms of the bond, the sureties were responsible for the satisfaction by their principal of whatever judgment might be rendered against her by the *425Supreme Court on said appeal. The only substantial satisfaction of that judgment by Mrs. Cobb, would have been not merely the restoration of the land, slaves and stock, but the restoration of the crop, which at the time was growing on the land, and which it was the clear purpose of the order, from which the appeal was taken, to put into the possession of ParJiam, one of the obligees in the appeal bond. But this restoration has not been made, and by Mrs. Cobb's act has become impossible, she having converted the crop to her own use. I think this case is distinguishable from Cartwright's case, by reason of the recitations in the bond.
It is said that the value of the crop was a matter pertinent to the partnership affairs, and should have been sued for in the action decided at the present term brought by Lowry against Mrs. Cobb. See ante, page —. No such exception was made below to the action, and it would be manifestly inequitable to permit it here; for in the suit to which we refer exception was expressly made to any claim being considered there for the crop of 1848, because claim was made therefor in this suit; to which exception being sustained, Lowry submitted, and an order of nonsuit on his motion was entered in that case, as to so much of his demand as related to that crop.
We are of opinion the demand in reconvention and plea in compensation were properly disregarded. See the case of Parham & Lowry v. Cobb and Harris, 7 Annual, page —. See also, Civil Code, 2207.
The appellees ask an increase of the judgment; but an examination of the evidence has not satisfied us the jury erred in the amount awarded.
In the view we have taken of the evidence, we consider the amount awarded by the jury, as a full indemnity for Lowry's share in the crop of 1848, converted by Mrs. Cobb to her own use, and we therefore think that so far as that crop is concerned, the sum of $2000, portion of the judgment of $3000 rendered in the suit of Parham & Lowry v. Cobb & Harris, No. 2564, of the records of this court, (being No. 1688 of the records of the District Court,) should be considered as given for the same cause of action, to-wit: Lowry's share in the net crop of 1848, and therefore that two-thirds of any collection ■which has been or may be made on said judgment for $3000 against said Harris, ought to enure as a credit in favor of the succession of Mrs. Cobb on the present judgment.
The only point of difference between myself and my brethren, is as to the liability of the sureties on the appeal bond, and as to them in accordance with the opinion of the majority delivered by Mr. Justice Ogden, the judgment must be reversed.
It is therefore decreed, that the judgment in favor of the plaintiffs against the succession of Sarah M. C. Cobb and of her husband, O. B. Cobb, be affirmed ; it being also considered by the court that two-thirds of the amount of the judgment of Parham & Lowry v. Harris, is to be considered as having been rendered for the same cause, viz : said Lowry's share of the said crop of 1848, for which the present judgment was rendered, and that for two-thirds of any collection which has been or may be made on said judgment against Harrris by said plaintiffs, the successions of said Scoi'ah M. C. Cobb and of said O. B. Cobb, deceased, shall be entitled to claim a credit on the present judgment.
And it is further decreed, that the judgment against the other defendants and appellants, sureties, be reversed, and that there be judgment against said sureties in solido for the amount of the costs of this suit in the court below, *426and the costs of the appeal in the case of Cobb v. Parham & Lowry, No. 1273, of the records of this court, and No. 1364 of the records of the court below, for the ascertainment of which costs this cause is remanded.
It is further decreed, that one-half of the costs of this appeal he paid hy the said succession of Sarah M. 0. Gobi and O. B. Gobi, and one-half by the plaintiffs.