New-Haven Bank v. Miles

5 Conn. 587 | Conn. | 1825

Peters, J.

The defendant, Miles, contends, 1. that the amendments made in the suit againtst Pearl, exonerated the bail; or 2. that the plaintiffs can recover no more damages than they originally demanded.

1. The amendment of this declaration was matter of right, not dependent, like other amendments, on the discretion of the court. This right is given by statute. “The plaintiff may amend any defect, mistake or informality in the writ or declaration, without costs, within the three first days of the term of the court, to which it is returnable; provided such amendment shall not change the form or the ground of the action.” Tit. 2. sect. 33. This right was well known to the defendants, when they gave the bond; and their assent to the exercise of that right was thereby implied. The amendment was, then, lawfully made. It did not change the form or ground of the action, nor enhance the rule of damages, nor the amount of the bail-bond, but merely corrected a clerical mistake, and enabled the plaintiffs to recover their just claim, as stated in the declaration. The judgment and execution were certainly valid against the principal, and were equally valid against his bail, to the extent of his bond. When a sheriff executes an attachment, it is his duty to take personal estate to the value required, to retain it as a pledge to satisfy the judgment, and deliver it up, when demanded on the execution. Would this plea justify his neglect? And if, for want of estate or bail, the body is committed to prison, and demanded within five days, (Stat. tit. 2. sect. 79.) it would be a novel defence for the gaoler to say, “You have encreased the conclusion in damages, in your declaration, and I have discharged your debtor!”

Several cases have been cited, during the argument; but I have found none bearing directly on the question before us. Formerly, the extent of the liability of bail, was a matter of doubt. If one gave bail for another, he thereby became bail in all cases between the same plaintiff and defendant, at the same term. 1 Sell. Pract. 146. Garibaldo v. Cagnoni, 6 Mod. 268. Afterwards, if the plaintiff recovered a greater sum than was mentioned in the ac etiam, “ he was bound to nothing.” Genbaldo v. Cognoni, 1 Salk. 102. 1 Sell. Pract. 147. But in Martin v. Moor, 2 Stra. 922. where the ac etiam and bond were for 80l. ad damnum 150l., and the verdict 104l. ; and there being a variety of opinions in the books, whether the bail should be liable pro tanto, or totally discharged, the court resolved, that as there was no colour to subject the bail for more than they were bound in ; so there was no reason the plaintiff should suffer, by his moderation in taking bail ; but the recognizance should be considered as an agreement to pay 80l., or deliver up the defendant. This rule, however, has been confined to bail above, [special] while bail below [to the sheriff] are considered liable to the extent of their bond. This distinction has not been adopted in this state ; but we have always considered the bail bond an agreement to deliver up the principal, when reasonably demanded, or satisfy the judgment, which the plaintiff might lawfully recover, not exceeding the penalty of the bond.

The counsel for the defendants have referred us to Parsons v. Ely and Parsons, 2 Conn. Rep. 377.; but it is wholly irrelevant. In that case, it was decided, that a material alteration of a writ, on which a bond was taken, after it was signed, and while a bond continued necessary, destroyed the writ as well as the bond. The same point was decided, also, by this Court, in Starr v. Lyon & al. ante 538.

2. The defendants claim, that they are liable only for the sum originally demanded, if at all. To this I answer, that if the bond be void, they are liable for nothing; if valid, they are bound to satisfy the judgment, to the extent of their bond.

I advise, that judgment be rendered for the plaintiffs accordingly.

Hosmer, Ch. J. and Brainard, J. were of the same opinion. Bristol, J. being interested in the event of the suit, gave no opinion.

Judgment to be rendered for plaintiffs.