Row v. Pulver

| N.Y. Sup. Ct. | Aug 15, 1823

Curia.

The judgment must be reversed. It is fairly to foe inferred, from the evidence in the case, that Louks, the original defendant, was not a freeholder; and it is expressly proved that he was an unmarried man. Execution might, therefore, have gone against him immediately ; or, admitting him to have been a freeholder, execution might then have issued in 30 days, which would have been on the 20th of March. The undertaking of Row was in the alternative, either that Louks should stand trial, and pay whatever damages and. costs might be recovered against him, or surrender himself in execution. The case of Tuttle et al. v. Kip, (19 John. 194) shows that Row had no authority to surrender Louks ; that “ the common law incidents of a recognizance of bail, according to the practice of Courts of record, do not apply to a Justice’s Court.” Until execution issued, and in the hands of the Constable, Louies could not be surrendered. It was, therefore, the duty of the plaintiff to have placed the execution in the Constable’s hands as soon as it could legally have been done, even without a request from Row. But Row did request the plaintiff to charge Louks in execution as soon as the judgment was obtained; and the evidence in the case shows that he might then, and for three months afterwards, have been taken. This brings the case within the principle of King v. Baldwin, (17 John. 384,) “ that the surety is discharged, if the creditor, upon request, neglect or refuse to call upon the principal, and the omission is injurious to the surety.”

But the plaintiff sued as a non-resident. The statute^(a) reqU¡re¿ no security to he given for the adjournment; and it may be questionable whether Row could be held liable on his undertaking* upon that ground. (Dunham v. Heyden, 7 John. 381.) The judgment must, however, be reversed upon other grounds.

Judgment reversed.

(a) Vid. 1 R. L. 389, s. 4,