Stewart v. McGuin — 1 Cow. 99

Majority

p. 99

Stewart against McGuin.

Headnote

A writing, jnstiee’sfocket> ■on „the re~ turn of a warrant issued upon oaih, and on the defendant’s request to adjourn, whereby one acknowledges bail for an adjournment, adjournment be for more than 12 Cays, is a valid seen

... .. ... . . . . rity, within the 4th section of the 25 dollar act. The statute prescribes no particular form for such a security. An adjournment is a sufficient consideration for a promise. And that appearing upon the face of the contract, takes it out of the statute of frauds. Assumpsit is the proper action upon such an agreement. It is not a reco¡rnizance. Charging the principal, in execution, does not, in such a case, discharge the surety. Otherwise, had it been under the 5th section of the 25 dollar act: or upon a recognizance of bail in a court of record. But eren there, the charging one of two bail, in execution. T'iH not discharge the other. In an action against the surety for an adjournment, under the 4tk section of the 25 dollar act, the original judgment is the measure of damages. The adjournment must be on oath, to bring the security within the 5th section of that act.

Assumpsit, upon a contract of surety. The plaintiff sued one Whitford Gill, before a Justice, by a warrant, issued upon oath. The parties joined issue; and, on Gill’s requesting _. IT- , , „ „ u ° an adjournment, the Justice accepted the following writing, which was entered in his docket, as security for Gill’s appearance :

“ John Stewart, I v. >

Whitford Gill. ) 24i/t Oct. 1820. I hereby acknowledge myself as bail for an adjournment in this entitled suit, agreeably to law, until the 13th Nov. 1820, at two o’clock, P. M.

Daniel McGuin.”

p. 100

Gz7/ failed to appear at the adjourned day, but the plaintiff proceeded and took judgment for $46,42. He after-wards took out execution, which was returned nulla bona. (?z7f was committed to gaol thereon, where he continued till discharged under the 12th section^[1] of the twenty-five dollar act. The parties agreed, on the above case ; and that judgment might be entered as the Court should thereon direct.

Butterfield, for the defendant.

1. The writing on which the plaintiff founds his action, is not the security mentioned in the statute, (1 R. L. 389, sec. 4.) It is vague and general. In McNutt v. Johnson,^[2] the Court decide that it must be a recognizance, or, at least, a written engagement. But what is the use of a written engagement, unless it express the terms of the contract? 2. The action should have been debt. Assumpsit will not lie on a Justice’s judgment,^[3] He may take a recognizance of bail,^[4] which is an obligation of record, of equal degree with his judgment, and assumpsit will not lie on an obligation of record,^[5] A Justice’s Court is a court of record, at least for certain purposes ; and, if this writing is any thing, it is a recognizance. It was taken in open Court, before the Justice, and on his docket, the only record of his Court. 3. There is no consideration stated in this contract. Being within the statute of frauds,^[6] the consideration, as well as the promise, must be stated.^[7] 4. The arrest and commitment of Gill, was either a direct compliance with the undertaking, or a discharge of the surety. This being an adjournment for more than 12 days, and no consent of parties appearing, must be presumed an adjournment under the 5th section,^[8] by which a surrender, in execution, discharges the bail. By the arrest, this condition was strictly complied with.^[9] But allow the security to have been taken under the 4th section, when Gill was committed the debt was satisfied. The object of requiring the security was accomplished,

McCarty, for the plaintiff.

1. The particular kind of security, required in this case, is not designated by the act.^[10] The contract is certain enough. The writing is in the docks

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©t. It forms a part of the proceedings in the cause ; and the defendant acknowledges himself bail for an adjournment, in that cause, “ agreeably to law.” He thus refers to the law, for the nature and extent of his liability. 2. The security sets forth the considertion, viz. an adjournment. The law, requiring the security to obtain the adjournment, constitutes the consideration. A mere legal liability is sufficient.'^[11] Again : the adjournment was a consideration, as being an injury to the plaintiff, and a benefit to the defendant.^[12] 3. This is not a recognizance, which is defined, an acknowledgment of a former debt, conditioned to be void, §rc.^[13] It . - , , . , j ,.n j is an obligation of record ;^[14] and is not a record till enrolled in some court of record,^[15] This is not an action upon the judgment, but merely upon a simple contract to pay the judgment; and being to pay the debt of another, assumpsit is the only proper action.^[16] 4. On the non-appearance of Gill, the surety became bound to pay the judgment. The objection, that the imprisonment of the principal discharged the surety, is founded on the case of Smith et al. v. Rosecrantz ;^[17] but in Powell v. Smith,^[18] the Court^[19] say, that tile rule adopted, in that case, “ is a technical one, founded . . . . on the nature of the recognizance of bail. This is not so, as to the relation of principal and surety which exists in this case. Indeed, the plaintiff was under a moral obligation to attempt a collection of the principal, in the first instance.^[20] This was clearly an adjournment under the 4th section. Its being for more than 12 days, was by consent The adjournment was on the return of a warrant, the. very case provided for in that section. The 5th section provides, in terms, for other and distinct cases.

The writing signed by the defendant is sufficient, in law, to render him liable to the plaintiff for the amount of his recovery against Whitford Gill. The statute prescribes no form in which the security shall be taken. It is only requisite, that it should be in writing, so as not to come within the statute of frauds; and that it should express the purpose for which it is given. Where the object is expressed, the consideration, of course, appears. For the only

p. 102

end of giving the security, is to procure an adjournment of the trial, and the adjournment is a sufficient consideration to support the promise of the surety, to pay the amount which may he recovered against the defendant, if he does not appear on the day to which the cause is adjourned. It is analagous to forbearance to sue; which is a sufficient consideration for a promise to pay the debt of another,^[1] This Court, in M>pfult v. Johnson,^[2] which was a case under this same stat-x ute, decided, that the promise or engagement of the surety must be in writing. The undertaking of the surety, proved in the last case, was nearly in the very words of the instrument declared on in this; and it is tacitly admitted by the Court, that itwould have been sufficienthadit been in writing.

Assumpsit is also the proper form of action, for the enforcement of this agreement. The suit is not brought upon the judgment obtained against Gill; nor could any action be founded upon that judgment against McGuin. The amount recovered against Gill, is the measure of damages in the suit against McGuin; and that judgment is evidence of the amount which the plaintiff is entitled to recover, if he can recover at all. Whether he can recover at all, depends, not upon that judgment, but upon the written agreement of the defendant, which we have been considering.

The case of James v. Henry is, therefore, altogether inapplicable ; as it merely decides that assumpsit will not lie upon a Justice’s judgment, but that the action must be debt.

The instrument is too informal to be considered a recognizance. It contains neither amount, nor condition. It does not purport to be acknowledged before the Justice. And if it had not been written in the docket of the Justice, the idea, of its being a recognizance, would never have occurred to any body. That circumstance is not sufficient to transform so loose a memorandum into an acknowledgment of a debt of record.

The form of the action cannot, -therefore, be impeached on this ground. Nor is the defendant discharged from his liability as surety, in consequence of GilPs having been arrested upon the judgment obtained against him. The undertaking of the defendant was to pay the amount that might be

(u) (u) deríyn, John. iiop. 237.

(v) (v) 7 John, ‘ReP‘18,

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recovered against Gill, if he did not appear to defend the suit. The adjournment was evidently under the fourth and not under the ffth section of the act; because it is apparent from the case, that it was granted upon request merely. If it had been under the fifth section, the oath of the party, of the want of some material testimony or witness, would have been necessary to have procured it. The object of giving the surety was not, therefore, accomplished by the charging of Gill in execution, as it would have been, had the proceedings been under the fifth section.

This is a case of principal and surety, and not of principal and bail. Both may therefore be charged in execution, and the debt is not satisfied by the taking of either; nor is the taking of one a discharge of the liability of the other,^[3]

It is otherwise, as to principal and bail; there the plaintiff has his election, to have execution against the body of either ; but he cannot have it against both. This results from the nature of the recognizance of bail,^[4] But if two be bail, although one be in execution, yet the other may also be taken.^[5]

Judgment for the_plaintiff.

(w) (w) Blumfield’s case, 5 Coke, 87. Cro. Eliz. 851. Powell v. Smith, 8 John. Rep. 249 .

(x) (x) Smith & others v. Rosecrantz, 6 John. Rep. 97 .

(y) (y) Higgins case, Cro. Jac. 320.