Allison v. Wilkin

1 Wend. 153 | N.Y. Sup. Ct. | 1828

By the Court,

Woodworth, J.

This is a writ of error to the coui;t of common pleas of Orange county. Wilkin declared on a bond alleged to have been executed by Allison, in the penalty of $104 42. The defendant craved oyer, setting out the condition only, by which it appeared to have been a bond to prosecute an appeal from a judgment rendered before a justice, in favor of Wilkin against J. Colwell, and avering that Colwell had conformed in all things required by the statute. The condition is in the usual form, but the penalty and signatures not being set out, we are not informed whether Colwell, or any other person besides Allison, executed the bond. And here it is proper to observe, that had the bond been executed jointly and severally by Col-well and Allison, the plaintiff in declaring was not bound to take notice of the latter, but might declare in the manner he has done. If the defendant desired to avail himself of any legal consequences arising from the fact that Allison only executed the bond, he "ought to have set it out specially and at large, so that the court might be able to take notice of it. After craving oyer in this manner, the defendant plead 1st, non est factum, and 2d, general performance. The replication is, that Colwell prosecuted the appeal; that the cause was tried, and such proceedings had that judgment was'rendered in favour of Wilkin for $108 damages and $28 81 costs, which Colwell has not paid; that a writ of fieri facias issued on the judgment, directed to the sheriff of Orange, on which the sheriff returned nulla bona, &c.; that after the said return, the court of common pleas ordered that the plaintiff have leave to prosecute the bond.

The rejoinder states that no capias ad satisfaciendum issued on the judgment, before the commencement of this suit, on which Colwell might have surrendered in execution, in discharge of the bond, and that Allison has at all times been ready to surrender Colwell in execution on the judgment, but the plaintiff has refused to issue a ca. sa. concluding with a verification. The plaintiff demurred, and the defendant joined in demurrer. The record then proceeds to state the trial of the issue in fact, verdict and judgment on the demurrer for plaintiff. The plaintiff in error makes the following points:

1. There is no proferí of letters of administration. This is only cause for special demurrer.

2. That the bond was a nullity. I have already observed the omission to set out the bond at large, so that the question argued on this point is not presented by the pleadings. For aught that appears, the bond may have in all'things corresponded with the statute.

3. That the plaintiff in error fully complied with the condition. This objection is not well taken. The clause in the condition of the bond, that “ the appellant will surrender his body in execution,” applies only to the case where the appeal is not prosecuted with due diligence, and the appellant is bound to pay or surrender. Whenever there is a recovery in favor of the appellee in the common pleas, the condition is absolute to pay the amount of such recovery, provided an execution has been first issued on the judgment, and the same, or any part thereof, be returned unsatisfied. Ají./a. will satisfy the words of the statute, nor have I any doubt, from the expressions used, the intent also. A ca. sa. in order to enable the defendant to surrender in such a case, appeal's to me not In contemplation by the statute.

The judgment in the court below must be affirmed.