Agille v. Sarpy ( 1827 )

Wash, J.,

delivered the opinion of the Court.

The writ states, that whereas, Walter B. Alexander, as principal, and the defendants, had acknowledged themselves to he indebted to Camille Agille, and upon condition, that whereas, a certain writ of error, to be sued out, &c., by said Walter B. Alexander, against said Camille, on, &c., which said writ of error is ordered by, &c., to be a supersedeas. Now, therefore, if said Walter B. shall prosecute his said writ of error with effect, shall pay and satisfy the condemnation money, or otherwise abide the judgment of our said Supreme Court, that then this recognizance to be void, else to remain in full force. And whereas, also, on 10th May, 1826, at our said Supreme Court, before, &e., it appearing to the Judges thereof, that said Walter B. hath wholly failed to prosecute his said writ of error, according, &c., it was ordered by, &c.j that the supersedeas aforesaid be dismissed, and the cause he stricken from the docket of, &c.; and whereas, by, &c., we are informed, that satisfaction yet remains to be made to said Camille, for his damages by him sustained, by reason of the supersedeas aforesaid, in the recognizance aforesaid mentioned. The defendants demurred generally, and rely on the following points :

First. That the only breach assigned, is not within the recognizance.

Second. That it appears, upon the face of the said writ, that the recognizance was taken, and the supersedeas granted, before the writ of error issued.

Third. That, by the condition of the recognizance, the defendants might discharge themselves, by paying the original judgment, or by paying the penalty; and the nonperformance of both, ought to have been assigned, as to breaches.

It is directly stated, in the scire facias, that the defendants did not prosecute their writ of error. There was no judgment of this Court, ascertaining the amount to be paid by the defendants ; and if the defendants had any thing to bar the scire facias, they should have pleaded it.

As to the second point, (i. e.) that the recognizance was taken, and the supersedeas granted before the writ of error issued: the Court will not suffer the defendants to avail themselves of a wrong, done by themselves, through the indulgence of the plaintiff.

Let the judgment go for the plaintiff.