Mosier v. McKay

4 Denio 116

• Court: New York Supreme Court
• Decided: January 15, 1847
• Status: Published

Opinion

By the Court, Beardsley, J.

The execution of the bond by the defendant was duly proved, and so far a cause of action was established. But there was another obstacle to a recovery, which was not obviated on the trial, nor do I see that it could have been in any manner whatever. When, the bond was given an action was pending before the justice, (Renwick,) between Mosier and Collar. It was then on trial, and was not adjourned at the time of giving the bond or afterwards. The preamble to the condition of the bond recites the pendency of that suit, and then states that the defendant therein (Collar) had applied for an adjournment of the cause, immediately following which is the ordinary condition that the property of the defendant shall not be removed, &c. (Laws 1831, p. 405, § 40.) In its terms this bond looked to an adjournment of the cause, and the statement that an adjournment had been applied for clearly shows that the bond was only to become effective if an adjournment should be granted. This was as pmch a condition in the instrument as it would have been, if expressed in direct terms.

The evidence shows that the bond was not in fact given with a view to obtain an adjournment, but for quite a different purpose. This, however, cannot change or alter what was written. The instrument must speak for itself; and as written it was only to bind the obligors that the property should not be removed, &c. if an adjournment of the cause took place. No adjournment was had, and therefore no action can be maintained on the bond in any event. If it were necessary it might be added, that as the declaration did not state an adjournment, it failed to show a right of action against the defendant. But, confessedly, no adjournment took place after the execution of the bond; and that is an unanswerable obstacle to any recovery upon it.

• Whether a justice can rightfully cancel a bond previously given, on an adjournment of a cause, and take another obligation in lieu of it, in order to make the obligor in the first bond a competent witness for the party for whom he was surety,need not now be considered. That question is not before us in this cáse. But if it can be done, the substituted obligation should bear even date with the original and be similar in form, and thus consistent with the previous adjournment, or it should be drawn according to the facts of the case and thus indicate the object for which, and the circumstances under which, it was given.

Judgment affirmed.