Fondey v. Cuyler , 1 Wend. 464 ( 1828 )

By the Court,

Savage, Ch. J.

Had the memorandum been properly drawn under the 6th section of the fifty dollar act, it would have contained a clause exempting the surety, upon the original defendant’s surrendering himself in execution, in case judgment went against him. In that case, the plaintiff before the justice, must have had an execution in the hands of an officer to whom the principal could have surrendered himself; and then the principal, having obtained a discharge before the expiration of the execution, would have been discharged from custody. Under such a state of facts, the plaintiff below would not have been entitled to recover against the defendant. But the memorandum contains an absolute engagement to pay the damages and costs, if Van Patten should not personally appear at the time and place to which the cause was adjoiirned. This is in the form, substantially, as required under the 5th section. The reag0Q Qf the difference, I apprehend to be this: the 5th section provides for proceedings upon a warrant; the defend* ant *s in custody, and upon an adjournment, the surety en- . gages to replace him as he found him, in the custody of the constable. It was not necessary in such case, that the surety should engage that the principal should surrender himself in execution ; for if he complied with his engagement, the defendant would be brought back within the jurisdiction of the court and the officer, who, I apprehend, ought, when the surety has returned him, to retake him into custody, and detain him until legally discharged. By the 6th section, provision is made for cases where proceedings are commenced by summons; and, therefore, as the original defendant is not in custody, the surety agrees that he shall appear and answer, and also render himself in execution. By the actual agreement of the surety in this case, he was bound by one of two alternatives; either that Van Patten should appear, or that he, the surety, would pay the damage and costs if judgment should be given against him. Van Patten did not appear, and of course, when judgment was recovered against him, Fondey became liable to pay it. In this view of the case, the discharge granted to Van Patten, exempting his body from imprisonment, could not constitute a ground of defence. I am accordingly of opinion, that the judgment of the common pleas be affirmed.