White v. Blake — 22 Wend. 612

Majority

p. 612

White vs. Blake.

June, 1840.

Headnote

Special hail may apply for an exoner-etur on the ground that the right to imprison the principal was abolished by an act of the legislature previous to the expiration of the time "within which the principal might have been surrendered.

Bail have no right to ask for an exoneretur on the ground that the principal was not originally liable to arre$t—ott that ground the principal alone will be heard.

Special bail. The defendant became special bail for Asa F. Cochrane, a non-resident debtor in an action upon contract, ,at the suit of the plaintiff, brought in the New-York common pleas. In January, 1839, judgment was recovered in favor of the plaintiff. In June following a ca. sa. against the principal was returned non est. In December, 1839, the plaintiff commenced this action against the bail, who obtained an order enlarging the time to surrender until May last. Before the time expired, the act placing non-residents upon a footing with resident debtors as to imprisonment was passed, Statutes, 1840, p. 120. On the 4th of May, no surrender having been made, the plaintiff perfected judgment against the bail. A motimi was now made by the bail to

p. 613

set aside the judgment, and to enter an exoneretur on the bail-piece.

J). Selden opposed,

and likened it to the case where the principal dies after the return of the ca. sa., and he cited Olcott v. Lilly, 4 Johns. R. 407, where it was held that after the bail are fixed, de jure, by the return of the ca. sa., they take the risk of the death of the principal. He also said, that the motion should have been made by the principal, not the bail. Stever v. Somberger, 19 Wendell, 121.

By the Court,

The plaintiff’s counsel is right in saying that if the principal had died after the return of the ca. sa., the bail could not have been relieved. But the case which he cites recognizes a distinction upon which we have often acted, that where the principal has been discharged under an insolvent act before the period allowed ex gratia for surrendering has expired, the bail are entitled to relief. The discharge is held equivalent to a surrender. The same rule was applied in a case where the right to imprison the principal was taken away by the legislature. Russell v. Champion, 9 Wendell, 462. There could be no use in surrendering the principal, when he would be entitled to an immediate discharge.

In Stever v. Somberger, the bail moved on the ground that the principal was not originally liable to arrest, which was a matter for the principal—not the bail—to set up. But thebail always move where they have surrendered the principal, or where, as in this case, something has happened or been done which is equivalent to a surrender. i The bail are entitled to relief on payment of the costs of the suit against them..

Motion granted.