Curtiss v. Seymour

New York Supreme Court

Curtiss v. Seymour

1 Wend. 105

CourtNew York Supreme Court

DecidedAugust 15, 1828

StatusPublished

Cited by1 cases

This text of 1 Wend. 105 (Curtiss v. Seymour) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Curtiss v. Seymour, 1 Wend. 105 (N.Y. Super. Ct. 1828).

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Opinion

By the Court,

Sutherland, J.

This case presents'a question of considerable importance in the administration of justice. The sheriff, on learning that an attachment was ordered against him, satisfies the claims of the plaintiff, and.calls on the bail to indemnify hinri Had he been absolutely fixed with the payment of the' debt, this court would not have interfered ; but he was not so charged. On being brought in on the attachment, he would have been entitled to relief himself, and shall he be permittrd, by thus voluntarily assuming a debt, to charge the bail % It would be monstrous, could the sheriff thus prevent bail from relieving themselves from the responsibility of paying the debt. There has been no delay; the capias in the original action was returned at the last term ; the defendant was arrested in the suit on the bail-bond, during the present term, and he applies at the earliest day. Had the plaintiff taken an assignment of the bail-bond, and sued upon it, instead of the sheriff suing on it in his own name, it would have been a matter of course to have relieved the bail; and why should the voluntary payment by the sheriff impose responsibilities upon the hail which otherwise would not have existed % Notwithstanding that collusion is denied, the court cannot refrain from remarking, that this transaction is suspicious on its face, it not being usual for sheriffs to pay debts in such cases. The practice is unjustifiable. The motion of the defendant is granted. (See Coleman’s Cases, 63; Dunlap’s Pr. 196; 2 Saund. 61, n. f.; 4 T. R. 352.

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By the Court,

Sutherland, J.

This case presents'a question of considerable importance in the administration of justice. The sheriff, on learning that an attachment was ordered against him, satisfies the claims of the plaintiff, and.calls on the bail to indemnify hinri Had he been absolutely fixed with the payment of the' debt, this court would not have interfered ; but he was not so charged. On being brought in on the attachment, he would have been entitled to relief himself, and shall he be permittrd, by thus voluntarily assuming a debt, to charge the bail % It would be monstrous, could the sheriff thus prevent bail from relieving themselves from the responsibility of paying the debt. There has been no delay; the capias in the original action was returned at the last term ; the defendant was arrested in the suit on the bail-bond, during the present term, and he applies at the earliest day. Had the plaintiff taken an assignment of the bail-bond, and sued upon it, instead of the sheriff suing on it in his own name, it would have been a matter of course to have relieved the bail; and why should the voluntary payment by the sheriff impose responsibilities upon the hail which otherwise would not have existed % Notwithstanding that collusion is denied, the court cannot refrain from remarking, that this transaction is suspicious on its face, it not being usual for sheriffs to pay debts in such cases. The practice is unjustifiable. The motion of the defendant is granted. (See Coleman’s Cases, 63; Dunlap’s Pr. 196; 2 Saund. 61, n. f.; 4 T. R. 352.

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1 Wend. 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curtiss-v-seymour-nysupct-1828.

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