Livingston v. Bartles — 4 Johns. 478

Majority

p. 478

Livingston against Bartles, Manucaptor, &c.

ALBANY,

August, 1809.

Headnote

B. became bail for A. who was arrested in July, redded iii Sieu county. A. madenodefenee, and a rule for judgment by default was entered, but no juugmentiras docketed until j¡u-gust, isoo. In ’ ’ A. who had hwn for some time confined in gaol, and was reputed insolvent Yertuwed into /*ennsyhnnda where he has since resided, at 210 S from SieuOeJi county. On the 29(h Jllarch last, A. as bail, was arrested on -a "writ, -fumable on the Dl »> *Ir>y ()f Muy term ia„.. which was the first intimation the bail bail of ofthepiaivtiffim suppoib'rtbat he had abatid *n-ed all esp etation of recoveriivdiis debt. 1 he buii applied to C( misil for advice. liti scut to . l • on the Í2th to ontom a copy ^ . yS)l-piece. The principal came to Steuben cóuntv, on the 9th May, in c rder to ht surren<ieixo% HU(j as n0 sm.vctl(jer could then be made tapiaría ce, used c-py of the baii-p.cee, he proveo , t„ A-exo_ro,.k> wheve he 41.» noth 4ar*.y, and.on Lie ilex., day, oiic.^i ■ l >■* • 1 surrender himself into the custody si,cuff cf/wor-i or/.- '1 he clerk, W. '|"dthe bail-piece, and he .¡id Ji from the clerk ot J.< *,m v Host c .„fi lt was fileds Ui)tiI the 3d '■ the bail having bee'll ■ the circumstances of the obtain a copy ai f i-f it it was sent by mail to the bad,.111 n c..mity It " »s that th lulled into s.-eiirily by the piamtm, f.'=oit: reu by sui puse, lit, oifg^ mider of the case, to be allowed to surrender at tins temí

as A MOTION was made on the part of the defendant, hail of William Kersey, for leave to surrender his principal, and that an exoneretur be entered on the bailpiec(?-

The defendant stated in his affidavit, that he resided in Steuben county, and that the writ in the original cause was returnable in July term, 1803, and that a short time J thereafter he became bail, and the bail-piece was filed in the clerk’s office at Albany. The principal then resided Steuben county, and continued to reside there, until December, 1803, when he removed into Pennsylvania, where he now resides, about 270 miles from his former residence in Steuben. The principal, for some time be-was confined in the gaol of Steuben county, and was reputed insolvent. From that fact, and the omission of the plaintiff to charge the principal in execution, the bail supposed that the plaintiff had abandoned all expectation of obtaining any part of his judg‘""nt, until a few days before May term last, when a •cm the bail, returnable the first day of fore hÍS re“°val, Writ was sv ^ast term. The dcic,_, .nt^ firom ignorance, supposed that he had time, until this te. cJpal; he to surrender his prin"*1™ = — ........““ Bath, to ^Lía¡n a¿vice of counsel, and was informed he must surrender Vf-mt twice to die prin L cipfil, and that it coU(X not be done without a cemwi 1 ^ca

p. 479

eopv of the bail-piece; and on the 12th of May, he sent r J to Albany for a copy of it.

On the 22d May, a judge’s order was obtained, for staying proceedings until this term.

The defend mt in the original suit stated, by affidavit, that he was sued in 1800, on a promissory note, and the present defendant, became special bail for him; that he made no defence, and that judgment was not docketed until August, 1808 ; that the bail was arrested the 23th of M.xrch last. On hearing of it, he immediately came to Steuben county, from Pennsylvania, and arrived on the 9th of May, in order to surrender himself; that no legal surrender could be made, for want of a certified copy of the bail-piece ; that he, thereupon, went to the city of New-Tork, and arrived on the 28th of May, and on the 27th of May offered to the plaintiff’s attorney, to surrender himself immediately to the sheriff of New-Tork, which offer the attorney refused to accept ; that he is 64 yearsx old, and infirm ; that he was advised to apply to the court, and has come to Albany, for leave to surrender, and arrived here the 31st of July last.

Peter D. Beekman stated, by affidavit, that on the 19th of May, he received, by letter, an order from Steuben county, for a copy of the bail-piece; that he made search, and could not find it; and on the 3d July last, received a copy of it from the clerk’s office, in NewTork, and delivered it to the attorney of the defendant, who swore, that he sent it by mail to Steuben county, where he supposed the surrender might have been made, in season, but the delay must have been owing to the miscarriage of the letter, inclosing the bail-piece.

An order to stay proceedings was obtained on the 22d day of May lust, which was served on the plaintiff’s attorney, the 2d of June, who had previously filed a declaration in this cause.

delivered the opinion of the court. The conduct of the plaintiff has been calculated to lull the bail to sleep, and it would be unjust for him now to take and hold the bail by surprise. It would have the appearance of a fraud practised upon the bail. The prominent facts in the case are peculiar. The principal .was sued in 1800, upon a promissory note and he made no defence. At that time, and for some years after, he resided in Steuben county, and was for a considerable time, in gaol, and reputed insolvent | and from these facts, and the omission of the plaintiff to proceed in the suit, the bail supposed that the plaintiff had abandoned all expectation of recovering his debt; and that this supposition was correct, appears from the fact, that the plaintiff did not docket his judgment, until August, 1808, and not until long after the principal had removed to the interior of Pennsylvania, 270 miles from his former residence. Under these circumstances, the bail must have been completely surprised, when he was arrested a few days before the return of the writ, at the last term, and as all reasonable diligence has since been used by the bail and his principal to effect a surrender, it is right, that the rule, ex gratia, should be extended beyond eight days after the return of the writ. I place our interference in favour of the bail, upon the ground, that the plaintiff has himself prevented a surrender long ago, by throwing the bail off his guard ; and he ought not, and shall not now be permitted to avail himself of his own gross negligence or fraudulent contrivance, in order to fix the bail. The case of Aylett v. Hartford and Richards, (2 Bl. Rep. 1317.) and which is mentioned by Lord Commissioner Wilson, in the case ex parte Wright, (2 Ves. jun. 9.) is very much to our present purpose. In that case, a defendant was sued, and bail put in before bankruptcy. Afterwards, the defendant became a bankrupt, and the debt was proved, and the creditor acted

p. 481

under the commission. The bail omitted to surrender the principal, because, as the creditor was proceeding in another way, they thought they had no occasion to look after him, and then the principal ran away. When the creditor, afterwards, proceeded to charge the bail, the court of C. B. would not allow the plaintiff to proceed, because he had lulled the bail asleep. The bail do not ask so much in the present case. The principal is here ready to be surrendered, and so he has been, since nearly the close of the last term ; and the bail only ask for leave to surrender.

Rule granted, on payment of costs of the suit on recognisance.