Majority
p. 392Mechanics’ Bank against Hazard, bail of Hazard. NEW YORK Oct. 1812.
Headnote
Where a deverdict, obtained leave to plead his discharge under act, ¡mhliarrein continuanee on payment of costs, to comply with of6 the^ruie) and judgment was perfected against him, thatTJ could wardsafavail himseif of his and^the’court therefore”0™ toiiti0ord°er ™ exoneretur on the bail piece.If the debt in the suit against the principal has been paid, that is matter to he pleaded by the llRil, and not ground for their relief, on motion.
HOFFMAN, for the defendant, moved for leave to enter an exorelur on the bail piece, in this cause, on two grounds :
1. That the principal had been discharged under the insolVCllt cLCÍ.
2. That the plaintiff had been paid and satisfied by an endorsor 0f the same note on which the suit was brought against the princ i pal.
It appeared that the principal was the maker of a promissory note, payable to one Paiten, and by him endorsed to one Miller, who endorsed the same to the plaintiffs, and that in the suit against the / 1 t c 1 . 1 principal, as maker, an inquest was taken by default, at the last November sittings in New-York. After the commencement of the sHi'mSs’ an(l previous to taking the inquest, the principal was discharged under the insolvent act.
An application was made by the principal, at the last January term, for leave to plead his discharge, puis darrein continuance, which was granted, on payment of the costs of the sittings, and of the motion. The costs were duly taxed, and the payment de
p. 393The principle on which the court order an exoneretur on the bail piece, where the principal has been discharged under the insolvent act, is, that it would be useless to have a formal surrender made, since the principal would be immediately entitled to a discharge. But that is not the present case, as the principal could not avail himself of the benefit of his discharge, under the insolvent act, on account of his
mantled of the attorney of the defendants, and refused. Judgment was thereupon perfected in the suit against the principal, the 29th April last. Miller and Patten having been separately sued as endorsers on the same note, Miller paid the debt to the plaintiffs; and Patten afterwards repaid the amount to Miller, and the costs of the suit against him. Patten also paid the costs of the suit against the principal, and the costs of the motion made by him for leave to plead his discharge; and the judgment was held, by an agreement with the attorney of the plaintiffs, for the benefit of Patten, though there was no regular assignment of the judgment to him. Miller was present when it was agreed that the judgment should be kept on foot by the plaintiffs, for the benefit of Patten, and he expressed no dissent to the arrangement.
The capias ad respondendum against the present defendant was returnable on the first day of last August term.
Hoffman contended, that the principle settled by the English practice, and which had been recognised by this court,[1] was, that if the bail were at any time entitled to have an exoneretur entered on the bail piece, such right continued while the suit was pending against them, though eight days after the return of the capias had expired before they made application for relief. If application had been made at the last January term, for the relief of the bail, on the ground of the principal’s discharge, under the insolvent act, the relief would have been granted of course; and the only penalty the bail had now incurred, by the delay, was being subject to the payment of costs.
The debt having been satisfied by one of the parties to the note, it must enure to the benefit of the others. Here was no regular assignment of the judgment, which distinguishes it from the case of Clason v. The Assignees of Sands, decided at the last session of the court of errors. This, also, is an application in behalf of bail, towards whom the court are always indulgent.
T. A. Emmet, (Attorney-General,) contra.
p. 394own laches, in neglecting to comply with the order of the court, giving him leave to plead his discharge. A formal assignment of the judgment was unnecessary; and if it was requisite, a court of equity could compel its execution.
The laches of the principal in this case precludes him from availing himself of his discharge, in the suit against him. The reason, therefore, of ordering an exoneretur on the bail piece, on the ground of the principal’s being discharged under the insolvent act, which is merely to prevent unnecessary circuity, does not apply in this case. If the bail neglect to apply in season for relief, it is at their peril. If the debt in the suit against the principal has been satisfied, that is matter which the bail must plead. The motion must be denied.
Motion denied.