Von Gerhard v. Lighte

By the Court.— Brady, J.

—The undertaking of the defendants was, that their principal, William Walscheid, should at all times render himself amenable to the process of this court during the pending of the action brought against him by the plaintiff; and Walscheid not having rendered himself amenable to such process, they became liable upon their undertaking. The judgment rendered against the plaintiff by default did not terminate the action per se, because this court had the power to vacate the judgment and to allow the action to proceed, and exercised that power upon the application of the plaintiff. When the authority thus possessed was exercised, the action was renewed or continued, and was pending with like effect, as if no judgment had been recovered. If the defendants desired to avail themselves of that incident of the litigation, they should have applied to be exonerated from further liability. There was no other mode, save by surrender of their principal, in which they could, upon such a circumstance, relieve themselves of their obligation. The Code (section 191) declares by what events the bail may be discharged. The only one applicable to this case is the legal discharge of the principal from the obligation to render himself amenable to the process that may be issued against him. Such a discharge has not been obtained in this case. The power of the court over the litigation and parties must be exhausted, and the principal must be successful in the action by final judgment, before the liability of the bail ceases. Until those features attend the proceedings, the principal cannot be legally discharged from the obligation to render himself amenable to the process of the court.

This being the case, the judgment obtained against the plain-' tiff was of no avail.

The agreement made in Berlin,' to release the defendant Walscheid upon the payment of $500, was without consideration, and, being an agreement to accept less than the judgment, ivas void. (2 Parsons on Contracts, 130, and cases cited ; Dederick a. Leman, 9 Johns., 333 ; see also Crawford a. Nulspaugh, 13 Ib., 87.)

It was not valid as a defence to the defendants. There was no stipulation or agreement not to proceed in the cause or upon the judgment contained in that paper, and even if there ha’d been there was no consideration for such a promise, and it would not be binding.

But it is sufficient, to dispose of this appeal, that the agreement to accept the $500 was not binding upon the plaintiff. An agreement founded upon a valid consideration extending indulgence to the principal, or changing the situation of the bail, and increasing their risk, would exonerate them. (Rathbone a. Warren, 10 Johns., 597 ; Huffman a. Hulbert, 13 Wend., 378.)

In this case the agreement was without consideration, and made abroad—out of the jurisdiction of this court. It did not change the relations of the principal and the bail, and did not increase their risk.

The judgment should be affirmed.