Majority
p. 87Dando, survivor of Dando and Dando, assignees of the Sheriff of New-York, against Doll and Tremper.
Headnote
This was an action of debt, on a judgment rendered in the mayor’s court of the city of Ntw-York for $515- and 16 cts. in a suit on a bail bond. Judgment by default was entered againt Tremper, one of the defendants.— Doll, the other defendant, pleaded nul tiel record.In the original suit in the mayor’s court Doll alone was the defendant, and Tremper his bail. A writ was after-wards issued on the bail bond, agaiust Doll and Tremper jointly. Tremper only was arrested, and the writ, as to Doll, was returned non est inventus. The plaintiff proceeded under the statute, and set forth this return in his declaration. A judgment was obtained in the mayor’s court for want of a plea,, against both defendants.
The question was now submitted to the consideration of the court, without argument, whether as Tremper alone was arrested in the suit on the bail bond, an action can he maintained on that judgment against Doll, who was
T became bail to the sheriff for !>. in air action in the mayor s court. A suit was af-terwards br<JJt on the bail bond against T &. Dfm which T was arrested, and the writ, as to D, was returned non est in-ventus. The plaintiff having- obtained' a judgment by default, against'both defendants, which was regularly entered according to the statute.
p. 88
not arrested in that suit. The plaintiff contended that the action could not bp brought in any other form, as the judgment was joint against both defendants, pursuant to the directions of the statute.[1] The defendant Doll insisted that as the judgment in the mayor’s court was recovered against him, without his being arrested or appearing in court, such judgment can never charge him personal • ly, or affect his individual estate; but must be satisfied only out of the joint property of both defendants, or the individuál property of Tremper.
bro’t an action of debt on this judgment, in this court, to the judgment in the mayor’s court, being in form against both,the plain, tiff was enti. tied to judg. ' ment.
J. .S Smith, for the plaintiff.
Williams, for the defendant.
The judgment is clearly regular and in form against both defendants. There is no plea or suggestion of any defence by Doll, who has merely pleaded mil tiel record. On this judgment and this plea we have no alternative; but must say that the plaintiff is entitled to judgment. We give no opinion what it would be proper to decide, on any other plea, or statement of Acts submitted to the court.
Judgment for the plaintiff.