Olcott v. Lilly

4 Johns. 407 | N.Y. Sup. Ct. | 1809

Kent, Ch. J.

delivered the opinion of the court, 1. There is no case in which the death of the principal, after the return and filing of the ca. sa. has been allowed as a ground for relief. All the cases agree, that after the bail are fixed, de jure, they take the risk of the death of the principal. , The attempt for relief has frequently been made, and as often denied. The time which is allowed the bail, ex gratia, is at their peril, and they must surrender. (1 Roll. Abr. 336, (C. 1.) 12 Mod. 601. Freem. Rep. 338. 1 Str. 511. 2 Ld. Raym. 1452. 2 Str. 717. 2 Wils. 67. 6 Term Rep. 284.) There are cases in which the bail have been relieved, on motion, where the principal had become a peer, (Doug. 45.) or been sent abroad, under the alien act, (6 Term Rep. 247.) or had obtained a certificate as a bankrupt; (2 Bos. & Pull. 45.) but in none of these cases, except in the last, does it appear, that the bail had become fixed, when the event happened upon which they were relieved. A number of cases, in this court, have gone so far as to relieve the bail, if the principal had been discharged under the insolvent act, any time before the period allowed to the bail, ex gratia, had expired ; but these decisions went upon the principle, that the discharge was equivalent to a surrender, and that it would be an unnecessary circuity to have a formal surrender made, since the principal would immediately be entitled to a discharge; and the latest decisions in England, seem to have gone the same length. (Riddeller v. Mitchel, April term, 1800. Ingraham ads. Kane, October term, 1801. Van Alstyne ads. Brinkerhoff, July term, 1802. Seaman v. Drake, 1 Caines, 9. 1 Burr, 244. 1 Tidd, 240.)

To allow the motion, then, upon this ground, would he to change a long settled and uniform course of practice and precedents. All that was said by the court, in the case of Brownelow v. Forbes, (2 Johns. Rep. 101.) went no further than to admit, that the bail were then entitled, under what might be called the equity side of the court, in respect to this subject, to be relieved on surrendering their principal, within the eight days after the return of the capias in debt on the recognisance. There is no decision of this court which has ever altered or shaken the English practice on the point before us.

2, The next ground of the motion for relief is., that the plaintiff had previously sued out a fi. fa. and levied part of the debt, and that he afterwards resorted to a ca. sa. and to the bail, for the remainder. But it is not to be doubted but that the plaintiff may resort to these two kinds of execution, in succession; and that after levying part by fi. fa. he may sue out a ca. sa. or bring an action of debt on the judgment, for the residue. (4 Bos. & Pull. 134.)

This is for the advantage of the bail. It lessens the demand for which they may be responsible ; and it does not deprive them, in the mean time, of the right of surrender. There is no reason for saying that the bail are discharged, if the plaintiff elects to sue out a fi. fa. in the first instance ; no such plea is to be found, and it is repugnant to the condition of their recognisance.

In Heath v. Manucaptors of Hall, (Freem. Rep. 344. pl. 425.) it was admitted, that though part of the debt be levied on the principal, yet the bail are liable for the remainder. The motion must be denied.

Motion denied.