Although there was an order of the general term affirming the judgment of August 13, 1860, no judgment of affirmance could be entered, if the defendants in that judgment availed themselves of the leave to answer contained in and forming a part of the said order. When those defendants answered, a, new issue, differing in its character and mode of trial from that upon which the prior judgment had been entered, was formed, and the right to enter a judgment of affirmance, or to issue an execution on any judgment of affirmance, was forever gone. The plaintiff must have the right to enter and collect & judgment of affirmance, before he can proceed against the sureties in such an undertaking as the present. The plaintiff has never acquired such a right.
There never has been a final determination of the appeal from the judgment of August 13, affirming the judgment upon the issue joined. There was no liability of the defendants under their undertaking, until the condition of an absolute affirmance was accomplished. The liability of the defendants as sureties could not be retained to abide the determination of a new and different issue, arising upon an answer to the complaint, involving an investigation of questions of fact. The defendants were to be liable only upon an absolute affirmance of a judgment rendered upon issues of law, arising on demurrer to the complaint. Their undertaking does not embrace a j udgment upon any other issues. Whatever right the
The result of the trial on the issues of fact finally joined in that action had no connection with the affirmance of a judgment rendered upon demurrer; and that was the condition upon which, only, the defendants were to become bound by the terms of the undertaking.
■ The judgment should be affirmed, with costs.
Olerke¿ J, concurred.