Jewett v. Crane

13 Abb. Pr. 97, 35 Barb. 208

Opinion

By the Court.

*— Leonard, J.

—The defendants cannot object to the practice or proceedings in the action of Solomon W. Jewett a. Augustine N. Sprague.

If the judgment has been irregularly.obtained, sureties can be heard, if they apply seasonably, on motion to set it aside and let them in to defend the original action.

So, also, sureties may be let in to defend on the merits in the place of the defendant for whom they were bound, even after a regular judgment, if it were necessary for their protection, on suitable application and excusing laches.

The sheriff has been allowed to defend an action brought against a prisoner who has escaped from his custody. Bail for the appearance of a defendant have also been allowed to defend the original action for their own protection.

Such application would have been the proper remedy for these defendants to have adopted.

The condition of their undertaking is broken, and they became liable to an action, when judgment was obtained, and execution returned unsatisfied in the action against Sprague.

The answer alleges that the plaintiff, in the action against Sprague, objected to the sufficiency of the defendants as sureties; and that they were rejected, and the undertaking cancelled; and that they were discharged.

There is no evidence to sustain such an allegation or defence.

A motion to compel the defendant Sprague to furnish further sureties, on the ground that he had imposed an infant surety upon the court, was not an exception to the sufficiency of the sureties. Had he furnished further security, the former ones would then have been discharged.

The case of Pell a. Grigg (4 Cow., 426), relied on by defendant’s counsel, is not applicable here. That was a case of variance between the capias ad respondendum and the special bail-piece.

That case also was decided on motion. The regularity of the ■ practice and proceedings in another action cannot generally be litigated at nisi prius.

Judgment is affirmed, with costs.

Present, Clerke, P. J., Ingraham and Leonard, JJ.