Majority
p. 327Wattles against Laird. NEW YORK, Oct. 1812.
Headnote
Separate smts by the endormLovy^note maker. In the amt against the endorser ^'eJai^bad. recovered” judgments in both suits, in August, 1810, ?"„e| the maker’, was returned. in November^ a ca. sa* was issued against tlie endopsor* and returned unn p.sf m Tnit* non est in January, 1810. In ¿"btonthe re™|nIS™gceb°^ pleaded pay-Set-oiF of the ers> as received tolus use.It was heldthat the bfebemgSiforfeited> the matters pleaded by the defendanl could not be set up in nuisance, in ménVnmit'lfá given penalty; but defendant I’J®", the ^’Prdt the payment by the makers, in mitigation, so that the damages should be assessed for the costs only of the suit against the principal; or judgment ¡>ro Jorma might be entered for the penalty, and execution taken out for such damages, and the costs of the suit on the recognisance.
THIS was an action of debt on a recognisance of bail. In An-gust, 1809, the plaintiff, as endorsee of a promissory note made by E. B. Cornwell and Leonard Barton, payable to Thomas Stage, or order, brought'an action against Stage,- as the endorser, and, in November following, the defendant became special bail for Stage in that action. The plaintiff recovered judgment against Stage in ... 1,0 ! . , , . August, 1810, and, in the same term, recovered judgment also m a suit against Cornwell and Barton, the makers. A fi. fa. was issued on the last judgment, which was returned, at the next term, satisfied. A ca. sa. was issued on the judgment against St age, which was returned non est, m January, 1811, and the present suit, on the recognisance against the defendant, was commenced in Febtuary, 1811.
• i The defendant pleaded mil tiel record ; payment by btage9 the principal, and a set-off of money had and received by the plaintiff to the use of the defendant.
The plaintiff replied no payment, and that he did not owe the * * * v money pleaded as a set-off.
It was agreed, on a case containing the above facts, that if the court should be of opinion that the defendant, under the pleadings, could give in evidence, at the trial, and avail himself of the money collected by the plaintiff of Cornwell and Barton, then judgment should be entered for the plaintiff for 24 dollars and 91 cents, being the amount of the costs in the suit against Stage. Or, if the ° . , ° court should be of a different opinion, then a judgment should be entered for the plaintiff, for his debt as declared for; and that he should collect on the execution to be issued on such judgment, the sum of 24 dollars and 91 cents, the interest thereon, and the costs „ , . . Of this SUlt.
The defendant could' not, by pleading, set up any of the matters stated in the case, in bar of the suit oil the recognisance. The recognisance was strictly forfeited by the,return ©f non est to the ca. sa. and the recovery of the principal debt in another suit would not discharge the defendant, or his principal, un
p. 328
til the costs of the suit against hi~ principal were also paid. It is for those costs that the plaintiff mustt have proceeded in this suit. When he came to have his damages assessed upon the recognisance, the defendant might undoubtedly have given in evidence, in mitigation, recovery of the debt; and the assessment would then have been only for the costs of the suit against Stape; but the iudsinent would still have been, pro forma, for the penalty of the recó~nisance, and the p1aintiff would be entitled to levy on his execution the costs of this suit, and the damages so assessed. Judgment, therefore, must be entered for the plaintiff, according to the latter alternative in the ease.
Judgment accordingly.