Sarles v. Hyatt

1 Cow. 253

• Court: New York Supreme Court
• Decided: August 15, 1823
• Status: Published

Opinion

Curia.

Though the judgment below was in favour of Sarles, yet, if injustice has been done to him, he may reverse, it by certiorari. (Bissell v. Marshall, 6 John. Rep. 100.)

The jury appear to have supposed, that the undertaking of the defendants in error was satisfied by the appearance of Lambert <$/• Baker on the adjourned day. In this they erred. The adjournment was under the 5th, not the 4th section of the act; and the security is in strict conformity to the requirements of the 5th section. It is, to appear and pay the judgment, or render their bodies in execution. The-condition is not satisfied by appearance only, unaccompanied with payment. Neither payment having been made, nor the. bodies of the defendants rendered in execution, Sarles was entitled to recover the amount of that judgment from the sureties, and the jury should have found for him to that amount.

The security required by the 4th section of the act, in order to obtain an adjournment, is, to appear, and, in default of appearance, to pay the debt, fyc. In that case, appearance alone discharges the surety. That is the section to which Dunham v. Heyden, (7 John. 381) relates.

Judgment reversed.