White v. Blake

22 Wend. 612

Opinion

By the Court,

Bronson, J.

The plaintiff’s counsel is right in saying that if the principal had died after the return of the ca. sa., the bail could not have been relieved. But the case which he cites recognizes a distinction upon which we have often acted, that where the principal has been discharged under an insolvent act before the period allowed ex gratia for surrendering has expired, the bail are entitled to relief. The discharge is held equivalent to a surrender. The same rule was applied in a case where the right to imprison the principal was taken away by the legislature. Russell v. Champion, 9 Wendell, 462. There could be no use in surrendering the principal, when he would be entitled to an immediate discharge.

In Stever v. Somberger, the bail moved on the ground that the principal was not originally liable to arrest, which was a matter for the principal—not the bail—to set up. But thebail always move where they have surrendered the principal, or where, as in this case, something has happened or been done which is equivalent to a surrender. i The bail are entitled to relief on payment of the costs of the suit against them..

Motion granted.