Sarles v. Hyatt — 1 Cow. 253

Majority

p. 253

Sarles against Hyatt and Lambert.

Headnote

The security for an adjournment, under the 5th section of the 2$ dollar act, is not satisfied by the mere appearance of the defendant, at the adjourned day, but the debt must be paid, or the body rendered in execution;

Whereas, appearance, alone, satisfies the terms of the security, under the 4th section.

The- party may reverse his own judgment, where injustice isr done to him.

Osr certiorari to a Justice’s Court. Hyatt &r Lambert sued Sarles, in the Court below. The plaintiffs declared in assumpsit—the defendant pleaded the general issue, and gave notice of the set off, which he afterwards proved upon the trial, at which the plaintiffs did not attempt to prove any demand. But the defendant proceeded, as if a demand had been establishad against him, and claimed a set off upon the following instrument in writing, executed by the plaintiffs :

James Sarles v.

John Lambert #•

William Baker. j We, John Lambert and Nathaniel Hyatt, do hereby become bound, that the said defendants shall appear, stand trial, and pay the judgment which may be found against the said defendants, or render their bodies in execution, as the. law directs.”

The suit, as entitled in the written security, was commenced before David Olmstead, Esq. a Justice, and the writing was executed May 18th, 1819, as security for an adjournment of the suit, upon oath, under the 5th section of the 25 dollar act. (1 R. L. 389.) And at the adjourned day, the. parties appeared,and judgment was given fqr. Sarles, for $14, damages and costs. These facts were proved by the Justice, Olmstead, who produced and swore to his minutes. I| also appeared that execution was issued upon the judgment,

p. 254

and returned that neither property nor the bodies of the defendants could be found. Verdict and judgment for the de« fendant, for 6 cents and costs.

Voris, for the plaintiff in error.

A. Ward, contra.

Though the judgment below was in favour of Sarles, yet, if injustice has been done to him, he may reverse, it by certiorari. (Bissell v. Marshall, 6 John. Rep. 100 .)

The jury appear to have supposed, that the undertaking of the defendants in error was satisfied by the appearance of Lambert <$/• Baker on the adjourned day. In this they erred. The adjournment was under the 5th, not the 4th section of the act; and the security is in strict conformity to the requirements of the 5th section. It is, to appear and pay the judgment, or render their bodies in execution. The-condition is not satisfied by appearance only, unaccompanied with payment. Neither payment having been made, nor the. bodies of the defendants rendered in execution, Sarles was entitled to recover the amount of that judgment from the sureties, and the jury should have found for him to that amount.

The security required by the 4th section of the act, in order to obtain an adjournment, is, to appear, and, in default of appearance, to pay the debt, fyc. In that case, appearance alone discharges the surety. That is the section to which Dunham v. Heyden, ( 7 John. 381 ) relates.

Judgment reversed.