Gregory & Foot v. Levy & Sedgwick

By the Court,

Hubbard, J.

The demurrer must be sustained, on the ground that sureties to an undertaking of bail, in an action against them after breach, can not question the liability of their principal to arrest or imprisonment. The undertaking imports that liability, and the bail are estopped from controverting it. (Stever v. Sornberger, 24 Wend. 275. Welland, Canal Co. v. Hathaway, 8 Id. 481, 2. Ld. Raym. 1535,) The principle of this doctrine is that exemption from arrest is a personal statutory privilege, which the debtor alone can assert. (Stever v. Sornberger, 19 Wend. 121. See also 24 Id. supra.) That privilege the debtor may waive by submitting to an arrest under a judge’s order, and procuring bail. If thus waived, the sureties, in an action against them after forfeiture, can not alledge that the order was improperly made, or that the action was one in which the debtor might have claimed exemption. As against the bail, the law will assume that the action was bailable, was one m which the debtor might have been arrested under section 179 of the code, and hence that a ca. sa. under section 288 was properly issued to enforce the judgment. . If the debtor does not procure an exoneretur to be entered, the only remedy of the bail, to avoid liability, is to surrender their principal under section 191.

In this view of the case it is unimportant to inquire as tp the legal rights of the debtor had he been arrested and applied to be discharged from the ca. sa. In the case of Gridley v. McCumber, (5 How. 414,) which was affirmed in this court at general term, upon the sole ground that the judgment embraced a mailer of claim for which it was conceded the defendant could not have been arrested, it was held that the application to be discharged, by the debtor, might be made after arrest upon execution, on the ground that the action was one not authorizing an arrest. The question of sureties did not arise; nor did we undertake at general term to settle the question, as to whether the record of judgment should show that the action was one in which the defendant might have been arrested under sec. 179, in order to sustain a personal execution under sec. 288 of the code.

The code, I think, has in no respect affected the liability of bail, for a breach of the undertaking. If a breach occurs, upon return of a ca. sa. non est, and an action is commenced, they can not defend on the ground of the illegality of the order of arrest, or that no ca. sa. could issue upon the judgment. . Their only remedy is to move an exoneretur to be entered on the bail-piece or undertaking, upon surrender of the judgment debtor to the sheriff as provided by sec. 191 of the code.

.[Oswego General Term, April 5, 1852.

This demurrer must therefore be sustained, with leave to the defendants to amend on payment of costs.

Demurrer allowed.

Wm. F. Allen, Bwbbard and Pratt, Justices.]