Statement of case.

bail to surrender their principal did not apply; that laches was a good defense to the action; and that the evidence required the submission of that question to the jury.

Bail are sureties with the rights and remedies of sureties in other cases. The neglect of a creditor, upon request of a surety, to proceed against the principal discharges the surety, if thereby the debt has been lost.

(Argued January 19, 1881; decided March 1, 1881.)

APPEAL from judgment of the General Term of the Supreme Court, in the third judicial department, in favor of plaintiff, entered upon an order made November 26, 1879, denying a motion for a new trial and directing judgment on a verdict. This action was brought upon an undertaking executed by Stephen B. Adee, defendants' testator for bail.

The material facts are stated in the opinion.

George Adee for appellant. No cause of action survived the death of Stephen B. Adee. (3 Williams on Executors [7th ed.], 1869; De Golyer on Guarantees, etc. [Am. ed], 422; Smith on Mercantile Law, 286; Randall v. Sackett, 77 N. Y. 480, 482; Jardan et al. v. Dobbins, Admr., 122 Mass. 168; Harris v. Fawcett, L. R., 15 Eq. Cas. 311; L. R., 8 Ch. App. 866; Redf. Law of Wills, 274, 86; 2 Williams on Executors, 1604; Smith's Com. Law, 425; 3 Redf. Law of Wills, 279, § 14; The People v. Gibbs et al., Exrs., 9 Wend. 29; Dyer, 271, 322; 2 Bac. Abr. 245; Shaw, 176; 2 Mad. 145; Martin v. Brady, 1 Caines, 124; Franklin v. Law, 1 Johns. 402; Risely v. Brown, 67 N. Y. 160; Houck v. Craighead et al., id. 432; Randall v. Sackett, 77 id. 480.) The undertaking is void in law as illegally taken by the sheriff by color of his office, and as taken while the defendant was under duress. (2 R. S. 286, § 59; Kelly v. McCormick, 28 N. Y. 318, 321; Code of Proc., § 192; 1 Bl. Com. marg. p. 136, 344; 2 R. S. 440, § 77; Smith v. McFall, 18 Wend. 523; Wilson v. Williams, id. 585; McDonald v. Neilson, 2 Cow. 139, 183; Silvernail v. Cole, 12 Barb. 685; Partridge v. Com. Fire Ins. Co., 17 Hun, 95; 1 Bouv. Law Dict. 244; Wharton's Law Lex. 177; Tomlin's Law Dict.; Burrall v.

Statement of case.

Acker, 23 Wend. 606, 608; Decker v. Judson, 16 N. Y. 439, 442; Martin v. Campbell, 37 Barb. 179, 182; Shaw v. Tobias, 3 N. Y. 188, 192; Burrall v. Acker, 23 Wend. 606; King v. Gibbs, 26 id. 502; Winter v. Kinney, 1 N. Y. 365; Richardson v. Crandall, 48 id. 348; Morton v. Campbell, 37 Barb. 179, 184; People v. Chalmers, 1 Hun, 683; Dale v. Bull, 2 Johns. Cas. 239, 245; Love v. Palmer, 7 Johns. 159; Strong v. Tompkins, 8 id. 98, 100; Sherman v. Boyce, 15 id. 443; Reed v. Pruyn, 7 id. 426; Sullivan v. Alexander, 19 id. 233; Millard v. Canfield, 5 Wend. 61; Webber's Executors v. Blunt, 19 id. 188; Bank of Buffalo v. Boughton, 21 id. 57; Barnard v. Viele, id. 88; People v. Meighan, 1 Hill, 298; Webb v. Albertson, 4 Barb. 51, 52; Cook v. Freudenthal, MS. opinion, decided February 24, 1880; S. C., 10 N. Y. Dig. 85; S. C., 7 id. 268; Cook v. Horwitz, 14 Hun, 542; Code of Proc., SS 178, 187, 201, 211; Clapp v. Schutt, 44 N. Y. 104; Douglass v. Warren, 19 Hun, 1.) The undertaking was taken for the sheriff's benefit. (Code of Proc., §§ 192, 201; Clapp v. Schutt, 44 N. Y. 104; Douglass v. Warren, 19 Hun, 1.) If the agreement set up was made with the sheriff, in contravention and evasion of the statute, it is void. (Winter v. Kinney, 1 N. Y. 369; Code of Proc., § 178.) Plaintiff is estopped by the sheriff's and clerk's certificates. (Russell v. Gray, 11 Barb. 541, 544; McArthur v. Pease, 46 id. 423; Townsend v. Olin, 5 Wend. 207; Baker v. McDuffie, 23 id. 289; Dalton, 189, 190; 1 Lord Raym. 184; Watson on Office of Sheriff, 72; Anonymous, 4 How. 112; Sheldon v. Paine, 10 N. Y. 398; Hermon's Law of Estoppel, $$ 57, 210, 215, 216, 217, 220, 346, 462; Richardson v. Crandall, 48 N. Y. 348, 363.) Duress avoids a contract and the surety may avail himself of the defense. (Osborn v. Robbins, 36 N. Y. 365; Eadie v. Slimmons, 26 id. 9; Strong v. Grannis, 26 Barb. 122; Richards v. Vanderpoel, 1 Daly, 71; Foshay v. Ferguson, 5 Hill, 154; Watkins v. Baird, 6 Mass. 506; Wheaton v. Fay, 62 N. Y. 275, 283.) If the sheriff did not tell Mr. Adee the truth as to what the bond was taken for, or if the sheriff was mistaken, then it was a mutual mistake and it should be adjudged void. (2 Kent's Com. 483, note d; MoSICKELS VOL. XXXIX. 29

Statement of case.

ran v. McLarty, 75 N. Y. 25; Dambman v. Schulting, id. 55; Payne v. Jaynes et al., id. 593; Jackson v. Andrews, 59 id. 244, 247; Nevins v. Dunlap, 33 id. 676; Story v. Conger, 36 id. 676; 64 id. 453, 455.) The plaintiff's neglect to enter judgment and issue executions discharged the bail. (2 R. S. 382, §§ 31, 33; Gauntley v. Wheeler, 31 How. Pr. 137; Code of Civil Procedure, § 572; Sumner v. Osborn, 11 N. Y. Weekly Dig. 25; Whitney v. Spencer, 4 Cow. 39, 41; Mounsey v. Drake, 10 Johns. 27; Tuttle v. Kip, 19 id. 194, 196; Gorham v. Gale, 7 Cow. 739; Shaw v. Kidder, 2 How. 244, 246; 1 Johns. 507; 1 Caines, 252; Northern Ins. Co. v. Wright, 76 N. Y. 445; Craig v. Parkis, 40 id. 186; McMurray et al. v. Noyes, 72 id. 523, 525; Craig v. Parkis, 40 id. 181; Row v. Pulver, 1 Cow. 246; King v. Baldwin, 17 Johns. 384; Penniman v. Hudson, 14 Barb. 579, 581; Moakley v. Riggs, 19 Johns. 69, 72; Burt v. Horner, 5 Barb. 501, 506, 509.) A guarantor is discharged in all cases where the guarantee unreasonably neglects to perform any condition upon which the liability of the guarantor depends. (Vanderveer v. Wright, 6 Barb. 547; Penniman v. Hudson, 14 id. 579; Mains v. Hudson, 14 id. 76; Newell v. Fowler, 23 id. 628; Taylor v. Bullen, 6 Cow. 624; Thomas v. Woods, 4 id. 173; Cumpston v. McNair, 1 Wend. 457; Eddy v. Stantons, 21 id. 255; Loveland v. Shepard, 2 Hill, 139.) The claim against a guarantor is strictissimi juris and the terms of the guaranty must be complied with. Nothing excused the plaintiff from immediately entering judgment and issuing executions annually upon each payment. (Stewart v. Ranney, 26 How. 279; Walrath v. Thompson, 6 Hill, 540; S. C., 2 N. Y. 185; Leeds v. Dunn, 10 id. 469; Henderson v. Marvin, 11 Abb. Pr. 142; Dobbin v. Bradley, 17 Wend. 422; Bebee v. Johnson, 19 id. 500; Newell v. Fowler, 23 Barb. 628; Kies v. Tifft, 1 Cow. 98; Moakley v. Riggs, 19 Johns. 69; Inman v. Western F. Ins. Co., 12 Wend. 452; Craig v. Parkis, 40 N. Y. 186; Taylor & Otis v. Bullen, 6 Cow. 624; White v. Case, 13 Wend. 543.) A surety is discharged when he gives the principal notice to collect at a time when the claim can be enforced, and

Statement of case.

the principal refuses. (Remson v. Backman, 25 N. Y. 552, 555; Paine v. Packard, 13 Johns. 174; King v. Baldwin, 17 id. 383; Manchester Iron Manf. Co. v. Sweeting, 10 Wend. 162; Huffman v. Hulbert, 13 id. 375; 1 Story's Eq. Jur., § 325; Northern Ins. Co. v. Wright, 13 Hun, 166; 76 N. Y. 445.) The contract of Stephen B. Adee is simply that of suretyship. (Wood v. Fisk, 63 N. Y. 245; Rathbone v. Warren, 10 Johns. 587, 595.) Bail to the action may be released on motion, if their principal is discharged from his debts before their liability is fixed as bail. (Knapp v. Anderson, 1 N. Y. 466; People v. Manning et al., 8 Cow. 297, 299; 2 R. S. 330, § 16; Code of Proc., §§ 150, 191; Code of Civil Proc. 507, 601; Monroe v. Upton et al., 6 Lans. 255; S. C., 50 N. Y. 593, 597; Clark v. Rawling, 3 id. 216, 222; U. S. R. S., §§ 5067, 5071; Carpenter v. Turrell, 100 Mass. 450; Odell v. Walten, 38 Ga. 224; Cornell v. Dakin, 38 N. Y. 253; Poppenhausen v. Seely, 3 Abb. Ct. App. Dec. 615; Payne v. Able, 7 Bush [Ky.], 344; S. C., 4 Bank. 220; 1 Burr, 244; 3 Bl. Com. 292, n. 31; Tidd's Pr. [8th ed.] 290 to 295, 403, 1147, 1182, 1187; Martin v. Kilbourn, Cent. L. J. 94; Barber v. Rogers, 71 Penn. St. 362; Seaman v. Drake, 1 Caine, 9; Kane v. Ingraham, 2 Johns. Ch. 403; Olcott v. Lillie, 4 Johns. 407; Trumbull v. Healey, 21 Wend. 670; Buckman v. Cowell, 1 N. Y. 505; Ocean Nat. Bk. v. Olcott, 46 id. 12, 16; Depuy v. Swart, 3 Wend. 135; Baker v. Wheaton, 5 Mass. 509.) Plaintiff's neglect to file the undertaking prevented a surrender and exoneretur. (Code of Proc., §§ 188 423; Wilson v. Williams, 18 Wend. 581, 583; People v. Bartlett, 3 Hill, 570, 571; People v. Cook, 30 How. 110, 114; People v. Cuskney, 44 Barb. 118; People v. Manning, 8 Cow. 297; Carpenter v. Stevens, 12 Wend. 589; Cozine v. Walter, 55 N. Y. 304, 309.) The plaintiff, by keeping the undertaking from the clerk's office, prevented a surrender and an exoneretur and cannot take advantage of it. (Code of Proc., § 188, 189, 191; 2 R. S. 380, $$ 21, 22; Cozine v. Walter, 55 N. Y. 304, 308, supra; Herman's Law of Estoppel, S$ 228, 462; Young v. Hunter, 6 N. Y. 203; Moses v. Bier

Statement of case.

ling, 31 id. 462, 464; Clark v. Niblo, 3 Wend. 24; S. C., 6 id. 237.) Plaintiff cannot profit by the fraud of her agent, whether she knew it or not. (Bennett v. Judson, 21 N. Y. 238; Hathaway v. Johnson, 55 id. 93, 96; Cosgrove v. Ogden, 49 id. 255; J. P. & C. R. Co. v. Tyng, 63 id. 653; Elwell v. Chamberlain, 31 id. 611, 619; Crans v. Hunter, 28 id. 389; Craig v. Ward, 3 Keyes, 387; Kerr v. Mount, 28 N. Y. 659; Brainerd v. Dunning, 30 id. 211.) The sheriff's official certificate being conclusive against the bail it was conclusive against the plaintiff. (Townsend v. Olin, 5 Wend. 207; Baker v. McDuffie, 23 id. 289; Dalton, 189, 190; 1 Ld. Raym. 784; Watson on Office of Sheriff, 72; Anonymous, 4 How. 112; Sheldon v. Paine, 10 N. Y. 398; Herman's Law of Estoppel, §§ 57, 210, 346, 462.)

I. II. Maynard for respondent. It was unnecessary to allege that in the complaint an execution against the property of Augustus W. Adee had been issued and returned unsatisfied. (Renick v. Orsen, 4 Bosw. 384, 389; Hinman v. Beers, 13 Johns. 529; Scott v. Shaw, id. 378; 3 Tiffany & Smith's Pr. 99, note.) It was also unnecessary to allege that an execution against the body of Augustus W. Adee, having at least fifteen days between the teste and the return thereof, had been issued. (Old Code, § 289; Fake v. Edgerton, 3 Abb. Pr. 229; Bensel v. Lynch, 44 N. Y. 162.) The action in which the order of arrest was issued was one in which, under the provisions of the Code, an order of arrest could be properly issued. (McIntosh v. McIntosh, 12 How. 289; Jamieson v. Jamieson, 11 Hun, 38; Gardiner v. Gardiner, 3 Abb. N. C. 1.) In any event the surety upon the undertaking is estopped from raising any such question. (Gregory v. Levy, 12 Barb. 610; Kelley v. McCormack, 28 N. Y. 318.) The undertaking in question bound the estate of Stephen B. Adee, although no actual breach occurred in his life-time, and an action can be maintained against his executors to recover for a breach occurring after his death. (3 R. S. [6th ed.] 123, § 2; 3 Redf. on Executors, 277, 9; Frederick v. Frederick, 1 P. Wms. 710