Stewart v. McGuin

1 Cow. 99

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

Opinion

Curia, per Sutherland, J.

The writing signed by the defendant is sufficient, in law, to render him liable to the plaintiff for the amount of his recovery against Whitford Gill. The statute prescribes no form in which the security shall be taken. It is only requisite, that it should be in writing, so as not to come within the statute of frauds; and that it should express the purpose for which it is given. Where the object is expressed, the consideration, of course, appears. For the only end of giving the security, is to procure an adjournment of the trial, and the adjournment is a sufficient consideration to support the promise of the surety, to pay the amount which may he recovered against the defendant, if he does not appear on the day to which the cause is adjourned. It is analagous to forbearance to sue; which is a sufficient consideration for a promise to pay the debt of another,

(u) This Court, in M>pfult v. Johnson,(v) which was a case under this same stat-x ute, decided, that the promise or engagement of the surety must be in writing. The undertaking of the surety, proved in the last case, was nearly in the very words of the instrument declared on in this; and it is tacitly admitted by the Court, that itwould have been sufficienthadit been in writing.

Assumpsit is also the proper form of action, for the enforcement of this agreement. The suit is not brought upon the judgment obtained against Gill; nor could any action be founded upon that judgment against McGuin. The amount recovered against Gill, is the measure of damages in the suit against McGuin; and that judgment is evidence of the amount which the plaintiff is entitled to recover, if he can recover at all. Whether he can recover at all, depends, not upon that judgment, but upon the written agreement of the defendant, which we have been considering.

The case of James v. Henry is, therefore, altogether inapplicable ; as it merely decides that assumpsit will not lie upon a Justice’s judgment, but that the action must be debt.

The instrument is too informal to be considered a recognizance. It contains neither amount, nor condition. It does not purport to be acknowledged before the Justice. And if it had not been written in the docket of the Justice, the idea, of its being a recognizance, would never have occurred to any body. That circumstance is not sufficient to transform so loose a memorandum into an acknowledgment of a debt of record.

The form of the action cannot, -therefore, be impeached on this ground. Nor is the defendant discharged from his liability as surety, in consequence of GilPs having been arrested upon the judgment obtained against him. The undertaking of the defendant was to pay the amount that might be recovered against Gill, if he did not appear to defend the suit. The adjournment was evidently under the fourth and not under the ffth section of the act; because it is apparent from the case, that it was granted upon request merely. If it had been under the fifth section, the oath of the party, of the want of some material testimony or witness, would have been necessary to have procured it. The object of giving the surety was not, therefore, accomplished by the charging of Gill in execution, as it would have been, had the proceedings been under the fifth section.

This is a case of principal and surety, and not of principal and bail. Both may therefore be charged in execution, and the debt is not satisfied by the taking of either; nor is the taking of one a discharge of the liability of the other, (w)

It is otherwise, as to principal and bail; there the plaintiff has his election, to have execution against the body of either ; but he cannot have it against both. This results from the nature of the recognizance of bail, (x) But if two be bail, although one be in execution, yet the other may also be taken.(y)

Judgment for the_plaintiff.

deríyn, John. iiop. 237.

7 John, ‘ReP‘18,

Blumfield’s case, 5 Coke, 87. Cro. Eliz. 851. Powell v. Smith, 8 John. Rep. 249.

Smith & others v. Rosecrantz, 6 John. Rep. 97.

Higgins case, Cro. Jac. 320.