Lockwood v. Jones

7 Conn. 431 | Conn. | 1829

Lead Opinion

Hosmer, Ch. J.

The principle of the defence set up to this action, is simply this ; that the judgment recovered by Lewis S. Lockwood was not only a final judgment as contradistin-guished from one that is interlocutory, but was the final judgment, which fulfilled the stipulation of the recognizance ; and by recovering it, that he, within the true intent and meaning of the defendant’s contract, had prosecuted his appeal to effect, and made his plea good. On the other hand, the plaintiff insists, that it was not the final judgment on which the recognizance was suspended ; but that both by the letter and spirit of the contract, the judgment referred to in the bond, was the last or ultimate final judgment in the suit.

The construction of the contract advanced by the plaintiff, is, in my opinion, correct. This will appear from the words of the contract, construed with reference to its subject matter. It will be my purpose to establish this proposition, and then to answer the analogies, determinations and supposed consequences of the construction urged by the defendant.

1. In the first place, what is the fair intendment of the recognizance arising from its words ? Before my answer is given to this question, I observe, that the defendant is a surety, and as such is never answerable beyond the clear scope of his engagement. Ludlow v. Simond, 2 Caines Ca. Err. 1. Elmendorph v. Tappen & al. 5 Johns. Rep. 176. Walsh & Beekman v. Bailie, 10 Johns. Rep. 180. Wright v. Russell, 3 Wils. 530. 2 Wms. Saund. 415. n. (5). Smedes v. The Utica Bank, 20 Johns. Rep. 372. 383. But to the extent of his contract, expounded by the expressions employed and the object intended, he is responsible.

I further remark, that neither from my own experience, nor from enquiries made of others, do I find, that there has been any practical exposition of the matter in question.

The words of the recognizance, taken in their established popular meaning, are clear and unambiguous. The bond was broken, if the appellant did not prosecute his appeal to effect, and make his plea good. The word plea, as used, is obviously Commensurate with the term defence; in converting the nega. tive stipulation into its correspondent affirmative, it necessarily comprises this position; that the appellant shall effectually prosecute his appeal. In other words, that at the final termination of the controversy between the parties, he shall be successful in his defence ; — not that at some period of the contest, he shall obtain a judgment, erroneously and againstthe merits of his case, which shall appear to be final, in the strict sense of the term, but that ultimately his defence shall be crowned with success.

The words, unquestionably, reach to this extent; and their construction is made indisputable, by two clearly established principles. The first of them is, that if there be any ambiguity, the words of a contract shall be expounded most strongly againstthe contractor. Verba fortius accipiuntur contra prof-erentem. But without a recurrence to this principle, the result will be the same. It is well established as a rule of construction, that an indefinite or general expression, shall be understood universally, or according to the full latitude of its terms, unless restrained by some special subsequent words, or by the subject matter of the contract. Co. Litt. 42. Shep. Touch.88. 1 Sw. Dig. 226. Now, the stipulation in the recognizance is general and indefinite ; the full latitude of its terms alludes to and embraces the last or ultimate final judgment in the suit; it is not restrained by any subsequent words ; nor, as I shall show hereafter, by the subject matter of the engagement. A limitation of the meaning may be supposed, on a principle not contended for; and that is, that after a new trial is granted, the original suit, in contemplation of law, is at an end, and a new suit is substituted. But the opposite of this is true. A new trial vacates the judgment complained of, and puts the parties in the state, in which they were, immediately before the judgment was rendered ; and this is its whole effect. The original suit is entered in the docket, and the first and only cause of action, on the first and only writ, is tried again, at a future day. By the operation of the new trial, the cause, in contemplation of law, is precisely in the same condition, as if no judgment had ever been rendered ; so that the action is, in no sense, new, but is identically the original suit. Fleming exr. of McDonald v. Lord, 1 Root 214. Magill v. Lyman & al. 6 Conn. Rep. 59. Lyman v. Magill, 6 Conn. Rep. 69. The error is extirpated, and every thing else is in statu quo.

2. The extent of the words being unquestionable, I will now consider the recognizance, in reference to its subject matter. What was the object of the parties ; or in other words, what was the spirit and intent of the contract ? I answer; it was security for all the costs that should arise, by reason of the appeal, and until the termination of the plaintiff’s suit.

This is proved, by the expression of the contract, already discussed ; the most convincing evidence of the intent.

It is equally established, by the reason and nature of the case. By a judgment against the appellant, he, prima facie, was a debtor, and in the sum assessed ; and the legislature have thought it unreasonable, that the judgment debtor should be allowed an appeal, and a rehearing, without giving bonds to secure to the adverse party, his costs of suit. A recognizance suspended on the condition, that the appellant should prosecute his suit to a temporary effect, and that, at some period of the cause, he should erroneously obtain a final judgment in his favour, that would not be the ultimate termination of it, would almost seem ludicrous. It is admitted to have been the right of the plaintiff to demand, and the duty of the appellant to give, security for the costs, if the plaintiff should prevail against him. But if his recognizance was to secure any costs to the plaintiff, what reason can be assigned, why the whole costs, at the termination of the controversy, should not be made sure? All the costs are within the same reason. The reason was, that the plaintiff should be dragged no farther in controversy, unless his costs were made secure. Less than this, would not attain the only conceivable object of requiring bonds ; for, there is the same reason for security of the whole of the costs, that there is, for the security of part of them. And that a judgment rendered for the appellant, and afterwards set aside for error, because it never ought to have been rendered ; that this nullity in law, which was always unjust, and against the merits of the case, should be followed up, by stripping the injured plaintiff of his security, and giving an important benefit to the appellant, is peculiarly unfounded. Not less strange does it appear, that a recognizance to secure the plaintiff his costs, should be suspended, by the parties, on an event, to happen in the midst of their controversy ; and not at its termination. It is said for the defendant, that it would be unjust to hold him responsible, after he had once obtained a final judgment in his favour ; and that, therefore, such a construction of the recognizance, would be irrational. If, said he, I am held beyond this period, so that at any time within three years, a new trial is obtained, and judgment for the plaintiff, my security, if I ever had any, is gone. The property, for instance, delivered to me for my indemnity, is given up, and however reluctant I might be, I was bound to surrender it; and even if there was no actual security given, my responsibility, is unjustly prolonged.

This, the principal argument of the defendant, admits of two obvious and sufficient answers.

The first is, that the person recognizing, never need be in the condition supposed. He can always guard himself, by a competent indemnity. If he is unwilling to confide in the personal responsibility of his principal, he may demand property, with such stipulations as will effectually protect him, until the possibility of damage has passed by. The indemnity, if taken out of his hands, is occasioned by his own neglect, by his not guarding himself, and subjecting it to a lien, until the three years have elapsed. There is neither impossibility nor difficulty in the case.

I reply, secondly, that the contract and condition of the defendant, are altogether voluntary. He foresaw the legal possibility of the facts, which have happened in this case, and entered into a recognizance, on such security as he pleased. It is a law maxim, Volenti non fit injuria. In the case of ex parte Garland, (10 Ves. jun. 110.) in which the inconveniences to an executor, authorized by last will to carry on a partnership, were strongly pressed, and admitted by Lord Eldon; he contented himself with this, as a conclusive answer, that he voluntarily put himself in such condition. The same principle was adopted, and by this Court applied, in a similar manner, in Pitkin v. Pitkin & al. 7 Conn. Rep. 307. There is, then, no hardship in the case ; as the bondsman has the full benefit of his contract, and is subjected only to his voluntary engagement.

To the supposed consequences pressed on the defendant’s part, let the effect of the construction advanced by him, on the plaintiff, and on others in like situation, be attended to. In the first place, the plaintiff has taken all the security the law admits, by the acceptance of a recognizance, expressed in the most sweeping and unlimited terms. Now, if a final judgment, set aside and not ultimately final, extinguishes the bond ; a judgment erroneous, against the merits of the case, and for that reason vacated ; the plaintiff is unjustly deprived of the security, for which the recognizance was given. He has been subjected to great costs ; the appellant is a bankrupt; the plaintiff ever had a just cause of action, and by error only had it doubted, for a short time ; and yet of his security he is utterly defeated ! What construction can be more hard and unjust ?

When the general operation of the defendant’s principle of exposition is regarded, it becomes thé more exceptionable. It applies to bonds for prosecution in all cases, whether given by a plaintiff in commencing his suit, or by an appellant. On the principle advanced by the defendant, if the plaintiff recover a final judgment in the superior court, which is afterwards vacated for error, the defendant has lost his security for costs. The doctrine, for aught that I can see, is equally applicable to motions for new trials, as to petitions. By our practice, judgment is not suspended, as it is in England and elsewhere, by a motion for a new trial; (3 Bla. Comm. 387, 395. 2 Tidd’s Prac. 813. & seq.) but final judgment is first actually rendered, and after this, the motion is allowed. Hence, by a general rule of this Court, of June 1810, (4 Day 468.) execution only is stayed; and by the rule of July 1809, (4 Day 120.) if a new trial is not granted, interest is directed to be computed on the judgment already rendered. Now, if a final judgment, although afterwards vacated on motion, extinguishes a bond for prosecution, it is easy to perceive, that the consequences may be both extensive and pernicious.

On the whole, I entertain no doubt that the argument ab in-convenienti, derived from the hardship of the construction, greatly preponderates against the defendant. I am also of opinion, that this consideration has been pressed altogether beyond its proper bearing. Jura adaptantur ad ea quce fre-quentius accidunt. The question discussed will seldom arise. In my experience and observation, it never has arisen, until the present case.

3. I will now attend to the analogies and decisions, on which the defendant has placed reliance.

The determinations regarding special bail, have been first referred, to ; and an analogy between these and bonds and recognizances for prosecution, has been much insisted on. In this state, it has been decided, that an erroneous judgment reversed for error, or annulled by the granting of a new trial, is the final judgment for the exoneration of bail. Fleming, ex’r. of McDonald v. Lord, 1 Root 214. Butler v. Bissel, 1 Root, 102. 2 Swift's Syst. 175, 6.

The law I admit; but the analogy I deny. What is meant j^y an ana]0gOUS determination ? Not merelya remote resemblance, but such a real similitude, that the cases compared stand on the same reason. In comparing recognizances for prosecution, whether of an action or an appeal, with bail to the action or special bail, the mind is naturally led, first, to consider the expressions in which the respective bonds are conceived. The bondsman for prosecution stipulates, that his principal shall prosecute his action or appeal to effect, and answer all damages, if he fail to make the same good ; while he who becomes special bail, merely contracts, that his principal shall appear in the action and abide final judgment. Tidd’s Pract. Forms 74. The one who binds himself in a recognizance for prosecution, agrees, on a certain event, to pay a sum of money ; but the bail merely agrees to surrender the body.

The words of these bonds are very dissimilar. The great discrimination, however, between the cases, consists in this. The bondsman for prosecution has no indemnity, except what arises out of contract between him and his principal; and the law never interposes to make this security less. But the bail has a legal indemnity ; his principal is presumed to be in his custody ; he may take him when and where he pleases, and detain him or surrender him in court, or into the custody of the sheriff, who has process against him ; or if he believes, that he meditates flight, he may cause him to be imprisoned in the common gaol of the county, and exonerate himself from his obligation. Parker v. Bidwell, 3 Conn. Rep. 84. Ruggles v. Corey, 3 Conn. Rep. 419.

In the event of a final judgment in favour of the principal, he is not, by law, taken out of the custody of his bondsman for prosecution ; for he never was in his custody ; but in such case, the principal is, by law, taken out of the custody of his bail; the string is severed, and the right of the bail over his principal, is at an end.

Here then, is a marked dissimilarity between the cases. The technical final judgment, before the termination of the suit, ought not, in any respect, to impair the right of the bondsman for prosecution ; but by this event, the right of the bail over his principal, is destroyed. He has stipulated to surrender him ; but the law steps in, and makes the surrendering of the principal, by the bail, impossible. After this, the law is not so unjust, as to require of the bail, to perform an impossibility of its own creation, but it effectually protects him, by its established principle; that, “ in all cases, where a condition of a bond, recognizance, &c. is possible at the time of the making of the condition, and before the same can be performed, the condition becomes impossible, by the act of God, or of the law, &c., there the obligation &c. is saved.” Co. Litt. 206. a. 2 Bla. Comm. 341. On this principle, unquestionably, the before cited determinations in favour of bail, are founded.

Now, I ask, where is the analogy? The act of law has taken from the bail iiis security ; but at the same time, has made it unnecessary, by his exoneration. But, in the case of a bond for prosecution, the law has neither taken away, nor impaired the bondsman’s security; and therefore, it has not discharged him from his obligation. There is, then, no analogy, but a marked discrimination between the above cases.

The determinations cited for the defendant, from the state of Massachusetts, have not any bearing on this case. It is true, that they give the meaning of the expression “ final judgment? as used in certain of their statutes. But it must be recollected, that “final judgments, (strictly speaking,) are such as put an end “ to the action (3 Black. Comm. 398.) and yet when they pronounce on the merits of a cause, they are technically final, as contradistinguished from judgments, which are interlocutory, although the cause is not terminated. In this latter sense, the judgment of a county court, on verdict or demurrer, is final; and yet by appeal, the cause is carried up for rehearing, ut res nova. Now, when the expression final judgment, is found in a statute, it is always the subject of enquiry, in which of the two former senses the terms are used. In the cases cited, from the words, the subject matter, the effects and consequences, and in one of them, from the antecedent and now varied expressions of the same law in substance, the court was of opinion, that by final judgment, a judgment technically final was intended, although it did not terminate the cause. To derive any aid from these decisions, it becomes necessary to show, that the reasons and principles of construction were identical with those which apply to this case. Clapp v Bell, 4 Mass. Rep. 99. Swett & al. v. Sullivan, 7 Mass. Rep. 342. Bingham v. Pepoon & al. 9 Mass. Rep. 339. But, on recurrence to the determinations, it will be found, that they are altogether different. I forbear to add to my reasons, a comment on the cases; nor is it necessary. Those who would press the determinations into their service, are bound to show their applica-bü¡ty to this case, which, in my judgment, cannot be done. For it is certain, that the words final judgment in any law, do not Per se sett^e the enquiry, in which of two established senses, they were used.

With some surprise I have heard the citation of determinations in Westminster-Hall concerning bail in error. On writ of error in England, bail is required, with condition to prosecute the action to effect. It is observable, that the bail is not to pursue to effect all writs of error, which may in future be brought, to revise the same subject; but it expressly is, to prosecute the specific action, in which the bond is given. 2 Tidd’s Pract. 1074. Hence, it is established law, if the judgment of the common pleas is affirmed, on error brought to the king’s bench, or the exchequer chamber, that on a writ of error preferred to the house of lords, the recognizance on the former writ is no security for the costs in the latter; and why ? Because the bond’was given, in so many words, to secure the costs, on the first writ of error only ; and the second and future writ must derive similar security from a new bond, given for that purpose. The question before us, is, whether a final judgment of the superior court, in the technical sense of the terms, which has been vacated for error, and thus effectively struck out of existence, is matter in bar of a judgment, after-wards rendered in the same suit. But the enquiry in Westminster-Hall, in the case s alluded to, was merely this ; whether a bond for prosecution of one suit, was in law, a bond for the prosecution of a future, contingent, and different suit. The question, which of two final judgments in the same suit, the one technically final and reversed, and the other actually final and existing, never occurred in Westminster-Hall. The cases are loto calo different. The English determinations, are alone applicable to cases like the following. A writ of error is brought to the superior court from the determination of the county court, and the judgment below is affirmeA Error is then brought in the Supreme Court of Errors, to revise the decision of the superior court. Now, if a question is made, whether the bond given to prosecute the first writ of error, is a bond for the prosecution of the second writ of error, the law of Westminster-Hall is in point; but it bears in no other direction.

4. The case of Ainsworth v. Peabody, 1 Root, 469. has been cited for the defendant; and I admit, that the opinion thrown out by the court, while the cause was on trial, (for there was no decision,) is in point. The appellant recovered in the case cited, and afterwards a new trial was granted, and final judgment was rendered in favour of the appellee. The court expressed an opinion, that by the first judgment in behalf of the appellant, his bondsman was exonerated, immediately on this, the plaintiff withdrew his action. I cannot consider this case, as possessing any authority. In the first place, there was no determination, but a mere opinion expressed, and apparently with little deliberation. Independent of this, however, the opinion was solely founded on the case of Butler v. Bissell, 1 Root, 202. in which it was held, that bail is exonerated by a final judgment in favour of his principal, although the judgment was afterwards reversed for error. In this case, there was not bail, but a bond for prosecution, neither expressed in the same language as a bail bond is, nor founded on the same reason. The court hastily conceived there was an analogy where no analogy exists ; and from the report it appears, that there was no argument of counsel, and no discussion by the court. I trust it has been shown, that the ground assumed by the court was entirely fallacious.

On the whole, I am clear, that, by the words, and spirit, and intent of the contract, bonds of prosecution are suspended, on the last or ultimate final judgment of the court; that this opinion does not outrun the equity of the case ; that public convenience requires it, inasmuch as the costs of a suit, in the instances prescribed by law, ought to be made secure throughout, and until its termination, especially as the party has done his utmost to secure himself, by taking a bond in the most unlimited and comprehensive terms ; and finally, as the bondsman has given a recognizance, which, in terminis, authorises the plaintiff’s demand.

The plea, therefore, in this case, is, in my view, manifestly insufficient, and the judgment below, erroneous.

Peters, J., though inclined at first to a different opinion, ultimately concurred.

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Dissenting Opinion

Daggett, J.

The only question is, whether the recognizance entered into by the defendant, is discharged by the first judgment of the superior court; and manifestly, that must depend on the decision of another question, viz. whether the juc[gment of the superior court rendered in September, 1824, in the case of Horatio Lockwood v. Lewis S. Lockwood, was a final judgment. I shall attempt to shew, that it was ; and that the recognizance was thereby discharged.

Here I would premise, that it is a principle well established, that “ bail is highlyfavoured in law, and statutes for their saving should be liberally expounded.”

It is conceded by the counsel for the plaintiff, and by my brethren who constitute a majority of the Court, that the special bail is discharged the moment the first judgment in chief is rendered for the defendant; and that the lien on land and personal property created by attachment, is removed by such judgment in favour of the defendant. It is also agreed, that if the principal had pledged money or any other property with the surety, to indemnify him for becoming bound as special bail, or for prosecution, or for an appeal, it must be returned to the pledgor, on the rendition of a judgment in chief; and if it be not so returned, an action will immediately lie in his favour against the pledgee. These principles were conceded in the argument, and are not now denied. They have been too long established to be questioned. Butler v. Bissel, 1 Root 102. Fleming exr. of McDonald v. Lord, 1 Root 214. 2 Swift’s Syst. 175, 6. Clap v. Bell, 4 Mass. Rep. 99. Bingham v. Pepoon & al., 9 Mass. Rep. 339. Their force and application to this case are attempted to be evaded ; — with what reason I shall shew hereafter.

In Clap v. Bell, 4 Mass. Rep. 99. the plaintiff brought a writ of replevin, to replevy certain chattels,which the defendant, who was a deputy-sheriff, had attached as the property of the plaintiff It was proved, that Brazier and Davis commenced a suit against Clap, in February, 1803. On the 8th of January, 1806, a verdict was given for Clap in that suit, and judgment thereon was rendered for costs against the then plaintiffs. On the 13th of February then following, Brazier and Davis sued a writ of review of that judgment, which was served on Clap, on the 21st of the same February, and was pending when this suit in replevin was brought. Clap sued the writ of replevin, on the 15th of October 1806, having previously demanded the goods of Bell, the deputy-sheriff, who refused to deliver them, but held them, by direction of Brazier and Davis, they claiming a right to ¡⅛⅛ them under the attachment until the determination of the review. The counsel for the defendant contended, that a review was a continuation of the original suit,being confined to the same pleading &c., and not an original suit. They likened it to a judgment of an inferior court, from which there lies an appeal, in which case goods attached are still holden to respond the judgment of the court having the appellate jurisdiction. Parsons, Ch. J., in delivering the opinion of the Court, says: “ We are all of the opinion, that when goods or estate are attached, by virtue of an original suit, to secure the judgment which the plaintiff may recover, if on the appeal, judgment be rendered for the defendant, the attachment is ipso facto dissolved, and the sheriff can no longer hold the property attached against the demand of the defendant.” There would seem to be some colour for the argument of the defendant in that case ; for by the law of Massachusetts, the plaintiff has a right to review his cause, and have it tried a second time. Our petitions for new trials are original suits to all intents and purposes, and a new trial is never granted of course, or ex debito justifies, as will be more fully shewn hereafter.

The same doctrine was holden, by the supreme court of Massachusetts, in the case of Swett & al. v. Sullivan, 7 Mass. Rep. 242. This was a suit against the defendant as special bail for Abraham Ogden. The defendant Ogden prevailed on the first trial; the plaintiff reviewed the cause, and obtained judgment for a large sum against Ogden ; and then instituted his scire-fa-cias against Sullivan as his bail. Parsons, Ch. J., in giving the opinion of the court, says: “ If the final judgment mentioned in the last statute [1786. c. 66. s. I.] should be taken to be the judgment on review, great mischiefs would be the consequence. Either party might review at any time within two years after entering judgment on the appeal. The bail might, therefore, be holden for several years, when the situation and property of the principal might be essentially changed ; and a party arrested might find it impracticable to procure bail.” P. 347, 8. And again : “ It is therefore our opinion, that the final judgment mentioned in the statute of 1784, [c. 10. s. 3.] is the first judgment on which the plaintiff may sue out an execution. If no appeal lies from the judgment of the common pleas, or if none is made, that judgment is final; or if there is an appeal, then the judgment on the appeal is final; for on either of these judgments execution may issue.” P. 348. The bail was held to be discharged.

It is impossible for me to discover why these concessions atKi decisions are not binding as to the point now in judgment. Let me examine the recognizance entered intobythe special bail, and compare its obligation with that entered into by the defendant on the appeal. The condition in the recognizance of special bail, is, “that the defendant [in the suit] shall appear and abide final judgment, and answer all damages in case he should not make his plea good.” 2 Swift's a Dig. 491, 2. On the appeal in this cause the recognizance set forth in the declaration has this condition : “ That if the said Lewis S. Lockwood should fail to prosecute his appeal to effect, and answer all damages in case he make not his plea good,” then &c. So the recognizance entered into, in a reple vin of goods attached, is, that the plaintiff shall prosecute his suit of replevin to effect, and in case he make not his plea good, answer all damages, &c ; yet if the defendant recover a judgment in the suit on which the goods re-plevied were attached, all agree, and so is the case of Clap v. Bell above cited, the goods are discharged from the lien, and of course, the recognizance in the replevin is also discharged. If the obligation incurred is the same, and I beg, if it is not, that the difference may be pointed out, then a final judgment in favour of the party for whom the surety undertakes, will operate a discharge in all these cases.

It is however, said, that the recognizance for the appeal is more extensive than that of special bail. I still must be allowed to ask wherein ? How is this made to appear ? Do they not both depend on the question, whether the defendant has made his plea good, or in other words, whether he has obtained a final judgment ? But it is suggested, that a judgment may be final, so as to discharge the special hail and the property attached, and yet not be an ultimate judgment so as to discharge the recognizance on the appeal. An ultimate judgment, in my opinion, is not a judgment for which the surety is, or can be responsible ; for it is unknown in law. “ Judgments,” says Sir William Blackstone, “ are either interlocutory or final. Interlocutory judgments are such as are given in the middle of a cause, upon some plea, proceeding or default, which is only intermediate, and does not finally determine or complete the suit.” “ Final are such as at once put an end to the action, by declaring, that the plaintiff has either entitled himself, or has not, to recover the the remedy he sued for.” 3 Bla. Com. 396, 398. When the defendant recovered against the plaintiff, and the plaintiff did not recover against the defendant, in September 1824, was not that judgment final within the definition above given? If then the defendant “makes his plea good,” by a final judgment in his favour, is not the surety for him that he should “ make his plea good,” discharged ? The objector says “ yes, in case of special bail, but not in case of bail for the appeal.” I ask, why not ? I ask, is there not a final judgment ? There is a. final judgment, if Sir William Blackstone and Chief Justice Parsons knew what a final judgment was. But neither of them knew probably what in law language an ultimate judgment was ; nor am I bound to understand it. Soon we shall have penultimate judgments. The granting of the petition for a new trial in this cause, which preceded the ultimate judgment, might perhaps be denominated a penultimate judgment : it was almost the last.

It is again insisted, that the reason why special bail is discharged, is, that he cannot surrender the principal in discharge of himself, as he might have done before final judgment: he has him not “ upon the string.” So, in the case of property attached, it can be no longer holden than till final judgment; and the law compels no man to do impossibilities. But may it not be asked, why the bail has not the principal upon the string ? Why the property attached cannot be holden after final judgment ? Why the surety in replevin is exonerated, when judgment is rendered in favour of his principal ? Is it not because the judgment is a discharge of the principal; and the lien on the property is destroyed by it, and the surety in replevin has fulfilled the condition of his recognizance ? Why then is not the defendant discharged, by Lewis S. Lockwood’s having pros-ee uted his appeal to effect 1

Is it after all to be said, that the recognizance for the appeal is more extensive than that entered into by the special bail ; and the only reason assigned, is, that it is more extensive ? An assertion that a proposition of this kind is true, may be alw'ays countervailed, by a contrary assertion, that the proposition is not true ; and an enquiring mind waits for the reasons.

Again ; by the statute (p. 63. ed. 1821.) it is provided, that in bonds given for the prosecution of an action or appeal, the surety or sureties shall be liable to satisfy the cost that shall be recovered against the principal, if it cannot be had out of his estate. An execution, then, must have been taken out against Lewis S. Lockwood; and the fact must be shewn to the court, that the cost could not be obtained from him. This will not be denied. It is averred in the declaration, that an execution was taken out, and a non est inventus (as toprop-crtyi and that was all that was necessary) regularly returned. But from September 1824 to September 1827, a period of three years, no execution could have been taken out against Lewis Si Lockwood, for this very substantial reason, that there was no judgment against him, but a final judgment in his fa-vour; and yet while the principal was thus discharged, his bail, the present defendant, was all the time liable, or rather has, after the lapse of three years, during all which time the principal was discharged, now become liable, by the doctrine, I suppose, of a kind of postliminium, or perhaps springing uses. If there be a case in which the principal is discharged, and yet the surety is liable, I am ignorant of it. A surety, ex vi termini, is correlate, and cannot exist without a principal. No decision or dictum favours such an idea. Let it not be here said, that if the defendant, Lewis S. Lockwood, was discharged, yet lie might be, and regularly was, subjected to the payment of all the costs, both antecedent and subsequent to thq new trial. This is doubtless true, (unless the court had granted a new trial upon different terms, which it might have done) but it is obvious that this liability did not arise at all from the recognizance, but from his situation as defendant. He would have been equally liable, had no bond been given.

It has been further suggested, that if the doctrine for which I contend had been adopted, the bond for prosecution, for an appeal and for special bail will be discharged, on the allowance of a motion for a new trial. This objection is susceptible of a very easy and satisfactory answer. A motion for a new trial, is, in no respect, like a petition for a new trial. The latter is an original suit. A duty must have been paid upon it, before the late law abolishing all duties was passed. It must have been served on the adverse party ; and it had not the effect of suspending the judgment or staying the execution. A motion for a new trial was substituted, for a bill of exceptions, by the superior court, in May 1807. By the rules then adopted, they were to be filed within forty-eight hours after verdict, and during the session of the court, and were by the court to be reserved for the consideration of the Supreme Court of Errors, with or without stay of execution, at their discretion. 3 Day 88. This motion for a new trial, is analogous, in many respects, to the practice in England, where it is said, it operates to suspend the judgment. 3 Bla. Com. 387. No new suit is brought; and the parties are, during the pendency of it, supposed to be in court. The motion is for a rule to shew cause why a new trial should not be granted. If allowed, the rule is made absolute, and a new trial granted. If not allowed, the rule is discharged. If execution is stayed upon the reservation of the motion, as is generally the case, the special bail, the bond for prosecution and the recognizance for the appeal, are not, in any manner, affected by it. This is the well known and established practice under the rule ;. and therefore, the motion cannot be likened to a petition for a new trial. In support of this doctrine, I avail myself with pleasure of the strong and expressive language of the Chief Justice, in the case of Magill v. Lyman & al. 6 Conn. Rep. 62. “A petition for a new trial to set aside a judgment by a court of law, is an action. The plaintiff in error has confounded a motion for a new trial with the petition, as if they were identical; and on this position the stress of the argument has been placed. What, then, is a motion ? Any proposition or request, formal or informal, addressed to a court, which can affect a cause, whether by obtaining the continuance of it, a reference of it to men, the exhibition of documents, the granting of a venire-facias de novo, or any thing else bearing upon the suit however remotely. But an action is a legal process by writ, duly signed by a magistrate, whereon^a duty is paid, commanding the appearance of a defendant in court to answer a specified cause of complaint, served and returned by a legal officer, the subject of pleading, of the law of limitation, of a decree and of error. A petition for a new trial has all these properties ; and by its properties a thing is distinguished.” And again, page 64. of the same opinion: “ From this brief history the essential difference between petitions and motions strikingly appears. The latter is no suit, and has no resemblance to a petition, except in the effect of granting a new trial ] a fact, which, as has been shewn, is no evidence of common nature or denomination. But a petition for a new trial is a suit at law, with all the properties of an action, terminated hy a formal decree, — from this time functus ofiicio, — and liable to reversal, at any time within three jmars, by writ of error. I conclude, then, that a petition is an action, and essentially distinguishable from a motion.” I am aware, that the Chief Justice differed from a majority of the Court in that case ; but in the opinion of the Court delivered py jQ(jge Peters, there is not an expression in opposition to the observations above quoted. The point decided by the Court, was> ^iat the granting or refusal of a new trial, on a petition for that purpose, is a matter of discretion, and not the subject of error.

I will now cite some authorities bearing directly on the poin. In Ainsworth v. Peabody, 1 Root 469. the point was distinctly made to the superior court, in a scire-facias on a bond for an appeal. Judgment had been rendered for the defendant, a new trial granted, and then a verdict for the plaintiff. The court compared it with the decisions respecting special bail, cited cases in support of the position, and the plaintiff, finding the opinion of the court against him, withdrew his action. Before this case is overruled, it will be requisite to shew, that it is not strictly analogous to cases of special bail; and this, 1 apprehend, cannot be done.

By the British statute, 3 James I., bail is required to be given on the.allowance of a writ of error, to be a supersedeas, with one or more sureties, in double the sum of the judgment sought to be reversed. The condition of the recognizance or bond, is, that the plaintiff shall prosecute the writ of error with effect, and pay all such debt, damages and costs as appear on the judgment, and also all damages and costs to be awarded for the delay of execution. It has been repeatedly decided, under that statute, that if error be brought in the Exchequer Chamber, on a judgment in the King’s Bench, and the judgment be affirmed, and then error brought returnable in Parliament, there must be a new or fresh bail. Tilly v. Richardson, 1 Salk. 97. S. C. 2 Ld. Raym. 840. Colebrook v. Diggs, 1 Stra. 527. S. C. 8 Mod. 79. Anon. 7 Mod. 120. Com. Dig. tit. Bail. N.

In this case, it is admitted, that the recognizance entered into, is, in every respect, like a bond for the prosecution of a suit; nay, that is an express ground of argument; — it is to prosecute an appeal to effect. The same rules must govern as would govern a bond to prosecute a writ of error, brought on a judgment of the county court to the superior court. Ths judgment is affirmed. A writ of error is brought on this judgment to the Supreme Court of Errors. Must there not be a new bond ; or is the bond given on the taking out of the writ of error to the superior court operative beyond the court to which it is returnable ? Immemorial usage may answer the question. Lord Holt says : “ The recognizance entered into, upon the allowance of the writ of error, in the Common Pleas, goes only to the writ of of error that is then brought; and it is true, if the judgment affirmed here be reversed by the Lords, it will discharge that recognizance ; but in case it be affirmed, here is a delay of execution, and costs that the plaintiff is put to, and the recognizance of the Common Pleas does not reach them.” Anon. 7 Mod. 121. Hence he and the other judges said, that there must be fresh bail to render the execution a supersedeas. Moreover, the argument ah inconvenienti is very strong. The surety never can be safe until, as the case may be, the lapse of four, five, or even six years. On the last day of three years after the rendition of the judgment, a writ of error or a petition for a new trial may be brought. This may continue, and if we may judge from what occurred in this case, it probably will, three years more. In the mean time, he has been compelled to relinquish property given to him as an indemnity, and then after the lapse of six years, to pay a bill of costs, from which he’supposed himself exonerated, by the terms of his recognizance ; for the defendant had prosecuted his appeal to effect, by obtaining a final judgment against the plaintiff. The defendant may well say, In fuze foedera non vent. Chief Justice Parsons lays much stress on this argument ah inconveni-enti, in the case cited from 7 Mass. Rep. 342.

I have already said, that it was conceded in the argument, and not denied by any member of the Court, that if Lewis S. Lockwood had delivered to the plaintiff property of any description to indemnify him against any loss for entering into this recognizance, he could not have held it after the judgment in chief in 1824. Had it been money, indebitatus assumpsit might have been maintained ; or trover would have lain for any other articles of personal property. This seemed irresistibly to result from the principle, that the lien created by the attachment, is, ipso facto, removed, by a final judgment, as well as from the doctrine never doubted, that special bail was in such case discharged. We have, then, a case, in which the defendant, Enos Jones, might have been sued, at any time between September 1824 and September 1827, for 400 dollars in money put into his hands by Lewis S. Lockwood to indemnify him for becoming his surety, and the money recovered from him on the ground that he was discharged from his surety-ship ; and thereafter, in 1829, this sum was recovered from Enos Jones, by Horatio Lockwood, on the ground that he was no¿ discharged from his suretyship. If this be not an absurdity, I know not what can be.

It was a^so sa'(b that if the bondsman on the appeal is discharged on rendition of the judgment in the superior court, it will operate very injuriously to the plaintiff; for he may be remediless for all his costs both before and after the granting of the new trial. Precisely so, if the special bail is discharged ; if the bond in replevin is discharged ; if the lien on real and personal property is removed, — the plaintiff may lose the fruits of his judgment. What then? The question, — and the sole question — still recurs, is the recognizance or bond satisfied, or the attachmment of property ipso facto dissolved, by a final judgment ? I think it demonstrable from repeated decisions, as well as from the reason and nature of the case, that such is the law. The judgment, therefore, is, in my opinion, correct, and ought to be affirmed.

Williams, J. conceiving himself interested in the question, and Bissell, J. having been of counsel in the cause, gave no opinion.

Judgment reversed.