Whitney v. Spencer

[Woodworth, J. But do not the terms of the bond imply, that the obhgee should sue out his execution, so as to [41] enable the defendants to surrender ? If this be so, your declaration is bad, within the authorities cited. The obligors were prevented in their performance, by the omission of the obligee.] Monson, read the case of Mounsey v. Drake, and insisted that the same objection existed in that case. The obligors might have paid the debt; and they can no more excuse themselves here, for the want of an execution, than in that case. S. Sherwood, contra, said this case could not be distinguished from that of Tuttle v. Kip, (19 John. Rep. 194,) upon which latter case he relied as being conclusive for the defendants in error. Monson said that case went upon the construction to be given to the 8th section of the act extending the jurisdiction of Justices of the Peace. (Sess. 41, ch. 94.) Nothing appears upon this record that the bond was given under that section. It might as well relate to any other Court, and the case cannot be distinguished from Mounsey v. Drake. Curia. We think differently. In Mounsey v. Drake, the condition was general to surrender to the Sheriff. Here it is to surrender in execution. No one could sue out this execution except the plaintiff. It was, therefore, his own fault that the surrender did not take place. Judgment affirmed.