Van Duyne v. Coope — 1 Hill & Den. 557

Majority

p. 557

Van Duyne, late sheriff, assignee, &c. vs. Coope.

Headnote

It is no defence to an action against sureties in a replevin bond, that they were excepted to, and failed to justify.

Quere, whether the complete substitution of new bail, as a consequence of the exception, would constitute a defence.

The doctrine that special bail may be displaced by their failure to justify after exception, has no application to the case of sureties in a replevin bond; yet, even in respect to the former, the matter cannot be interposed as a defence by plea to an action on the recognizance, but only operates as ground for ordering an exoner'etúr.

Debt on a replevin bond given .pursuant to 2 R. S. 431, § 7, 2d ed. The action was tried at the New-York circuit March 31st, 1841, before Gridley, C. Judge. The bond was joint and several, binding the defendants as sureties for the due prosecution of a suit in replevin, (commenced by one Gray against the present plaintiff, then sheriff of King’s county,) and for the return of the- property, in case a return should be adjudged, &c. It was executed to one of the coroners of that county, to whom the writ was directed. The plaintiff proved the recovery of a judgment

p. 558

by him in the replevin suit, with the other requisites for establishing a breach of the condition of the bond; and also an assignment of the bond to him.

The defence relied on was, that the plaintiff in this action had, in due time and form, excepted to the sureties in the replevin suit; and that the latter had never justified, or attempted to justify. Evidence was given to establish these facts. There was some doubt, however, upon the proof, whether formal notice of the exception had been served on the coroner. The defendant’s counsel insisted that the exception, with notice thereof, and a failure on the part of the sureties to justify, operated their discharge; and that even if there were a formal defect in respect to the exception, the sheriff having given notice to the plaintiff in the replevin of a regular exception, &c. was estopped from availing himself of such defect. The circuit judge being of this opinion, accordingly nonsuited the plaintiff; and the latter now moved to set aside the nonsuit and for a new trial, upon a case.

Cleveland & Smith, for the plaintiff.

J. M. Van Cott, for the defendant.

We think the learned judge erred in nonsuiting the plaintiff. We waive the question whether notice of the exception was given to the coroner or not; for we think that an exception entered on a replevin bond, with all the notice required by the statute, •followed by the mere neglect of the sureties to justify, will not work their discharge. The doctrine that an exception against special bail, and their omission to justify, displace them as bail, has no application. Yet the effect given to this exception at the circuit, was even greater than it would be upon a bail-piece; for in that case it operates merely as ground for ordering an exoneretur—a ground which has, I admit, been generally treated as conclusive on motion. But even in favor of special bail, it could not be interpos

p. 559

ed as a defence by plea against an action upon the recognizance. It is not necessary to say what effect the complete substitution of new bail might have in replevin, as a consequence of the exception. But independently of that, it is difficult to conceive of any act which would be a defence beside such as the law would recognize against any other bond containing a similar condition. This, it is well known, must be a strict compliance with the terms of the condition, unless prevented by the default of the obligee, or a release, &c.

New trial granted.