Fox

This is an application by some of the defendants in the above-entitled action for a writ of prohibition or supersedeas to restrain the superior court *354 from enforcing its judgment against them pending their appeal to this court. By the judgment appealed from, the plaintiff, Fox, recovered of the defendants, who are petitioning here, a little more than a million of dollars, and the amount of the undertaking necessary to stay proceedings pending the appeal is therefore in excess of two millions of dollars. (Code Civ. Proc., sec. 942.) Such an undertaking in the proper amount—two million and thirty thousand dollars — was duly filed, but the only surety by which it was executed was the Western Surety and Guaranty Company, a corporation with a paid-up capital of no more than one hundred thousand dollars, incorporated under the laws of the state of California, for the purpose, among others, of making, guaranteeing, or becoming surety upon bonds or undertakings required or authorized by law.

Within due time the respondent, Fox, in pursuance of section 948 of the Code of Civil Procedure, excepted to the sufficiency of said undertaking and surety, and thereafter, upon notice duly…