Milner v. Green

2 Johns. Cas. 283

• Court: New York Supreme Court
• Decided: April 15, 1801
• Status: Published

Opinion

Per Curiam:

One of the conditions of the recognizance is, that the defendant shall surrender himself to prison ; and when the defendant was arrested by the sheriff on the ca. sa. the condition was strictly complied with, and the bail discharged from their responsibility. Where bail are discharged, by the taking of the' defendant in execution, it is not usual, nor necessary, to enter an exoneretur on the bail-piece. On this ground we deny the motion. The bankrupt law is not to be construed injuriously to bail. It was not made, to affect their rights, but those of the plaintiffs; and if the defendant has been discharged in a manner inconvenient to the plaintiffs, it results from the bankrupt act, or from the sheriff, who *will be answerable, if the act does not authorize a discharge.(

a)

Motion denied.(b)

(a) [Old note.] In M’Master v. Kell, (1 Bos. and Pull. 302,) the court of C. B. in England, decided that they had no power to discharge a defendant out of execution, on the ground that a commission of bankruptcy had been since issued against him by the plaintiff. Eyre, C. J. said there had been no instance of such an application. “ Suppose,” says he, “the lord chancellor should think fit to supersede the commission, then we shall have discharged the debtor, because a commission has issued against him, and the 1'ord chancellor will have superseded the commission, because the party has been charged in execution.”

(b) The discharge oí bail is fully considered in Mr. Graham’s Practice, 2d ed. 434, et seq. tie observes: “ It has been held by this court that the court will, on motion, discharge .an insolvent who has obtained his discharge under the act, since the judgment, without inquiring into the validity or regularity of the discharge. (9 Wendell, 431.) Although, according to the English practice, if the validity of the discharge be disputed, the court will order an issue to try the fact, before they will direct an exoneretur to be entered ; (2 B. & P. 390 ; 6 Taunt. 75 ;) hut they will not direct an issue to try those facts, as to which the discharge is rendered conclusive evidence, by statute-(1 B. & AJkl. 433.) Iu England, also, an exoneretur has been ordered to be entered on the bail-piece, where the defendant had become a bankrupt, and obtained his certificate in a foreign country, after the contraction of the debt, and it appeared that the plaintiff resided in the same country with him at the time of the bankruptcy ; (4 T. R. 185, n.;) but that court refused to do so, in another case, where it appeared that the plaintiff was resident in that country at the time of the defendant’s bankruptcy abroad. (8 T. R. 609.) And in a still more recent case, the C. P. in England refused to order an exoneretur to he entered, on the ground of the defendant having obtained a certificate of bankruptcy in Ireland, where the bill of exchange on which he was arrested was made payable in England ; but' directed an issue, to inquire where the cause of action arose. (5 Moore, 331 ; see 3 Moore, 244. See also note to Kane et al. v. Ingraham, infra, p. 402.)