Row v. Pulver — 1 Cow. 246

Majority

p. 246

Row against Pulver.

Headnote

Where, on the°defendant gives security stand^trialf or surrender himself m execution, in shall^gc^against him, it is the duty of the plaintiff to take out .exea-fhe’cmiTegaily do so, or díchargíd. ^ This should he forthwith, on judgment, antis a singlé man, and not a"OHfad<mtm of a family, or a freeholder, within30 days ment^exciu3f'ud«-mentay And even normative in the under-surety, hu. it is absolute, to pay, it seems, that he will he discharged, if the plaintiff do not take his principal in execution, so soon as he can, after-request by the surety, that this be done, if the surety is injured by the delay.

Where the plaintiff proceeds, as a non-resident, security for an adjournment need not be given by the defendant.

But if, in fact, given, whether the surety is liable on his undertaking ? Qitere, ■

On certiorari to a Justice’s Court. In assumpsit, by Pu^ver against Row, in the Court below, it appeared that Puher, as a non-resident plaintiff, within the 25 dollar act, section .4, (1 R. L. 388-9,) had sued one Louks, who obtained an adjournment upon the defendant, Roto, signing the fol- . f r lowing instrument as secunty :

“ DUTCHESS COUNTY, SS. Philip Louks ) f a5°* ( John W. Puher. ) Action by warrant, under $25 act,. The defendant applies for an adjournment. I, Phillip A. Row, do hereby become security, that the said Philip Louks shall appear before Henry I. Trailer, the Justice, before wjj0m Such action is pending, on the 18th instant, at 2 P. M„ r 07 ’ at the house of Israel Reynolds, in the town of North East, *n sa^ county i and stand trial, and pay the damages and, costs, or render himself in execution, in case judgment, be. given against him in the action. Dated Feb. 15, 1822.

Philip A. RowN

The Justice waited an hour and a quarter at the place of adjournment, then heard the cause, and gave judgment for against the defendant, Louks, who soon after appeared with Row, the bail, (the Justice and Constable still being there) in whose presence some conversation passed about payjng the judgment, in which L. professed his readiness to go to gaol, rather than subject his surety; and Puher said he did not wish him to go to gaol; that Row was holden and must ° °

p. 247

pay the judgment. Row told Pulver that L. was there, and he might take him in execution. L. was a young unmarried man, and worked for Row till some time in April thereafter, and was in the neighborhood of the parties and Justice, till about the 22cZ May, 1822, when the execution issued. Verdict and judgment for the plaintiff. ■

Ruggles S? Hooker, for the plaintiff in error.

J. W. Edmunds, contra.

The judgment must be reversed. It is fairly to foe inferred, from the evidence in the case, that Louks, the original defendant, was not a freeholder; and it is expressly proved that he was an unmarried man. Execution might, therefore, have gone against him immediately ; or, admitting him to have been a freeholder, execution might then have issued in 30 days, which would have been on the 20th of March. The undertaking of Row was in the alternative, either that Louks should stand trial, and pay whatever damages and. costs might be recovered against him, or surrender himself in execution. The case of Tuttle et al. v. Kip, ( 19 John. 194 ) shows that Row had no authority to surrender Louks ; that “ the common law incidents of a recognizance of bail, according to the practice of Courts of record, do not apply to a Justice’s Court.” Until execution issued, and in the hands of the Constable, Louies could not be surrendered. It was, therefore, the duty of the plaintiff to have placed the execution in the Constable’s hands as soon as it could legally have been done, even without a request from Row. But Row did request the plaintiff to charge Louks in execution as soon as the judgment was obtained; and the evidence in the case shows that he might then, and for three months afterwards, have been taken. This brings the case within the principle of King v. Baldwin, ( 17 John. 384 ,) “ that the surety is discharged, if the creditor, upon request, neglect or refuse to call upon the principal, and the omission is injurious to the surety.”

p. 248

But the plaintiff sued as a non-resident. The statute^[1] reqU¡re¿ no security to he given for the adjournment; and it may be questionable whether Row could be held liable on his undertaking* upon that ground. (Dunham v. Heyden, 7 John. 381 .) The judgment must, however, be reversed upon other grounds.

Judgment reversed.

(a) (a) Vid. 1 R. L. 389, s. 4,