Livingston v. Bartles

Kent, Ch. J. delivered the opinion of the court. The conduct of the plaintiff has been calculated to lull the bail to sleep, and it would be unjust for him now to take and hold the bail by surprise. It would have the appearance of a fraud practised upon the bail. The prominent facts in the case are peculiar. The principal .was sued in 1800, upon a promissory note and he made no defence. At that time, and for some years after, he resided in Steuben county, and was for a considerable time, in gaol, and reputed insolvent | and from these facts, and the omission of the plaintiff to proceed in the suit, the bail supposed that the plaintiff had abandoned all expectation of recovering his debt; and that this supposition was correct, appears from the fact, that the plaintiff did not docket his judgment, until August, 1808, and not until long after the principal had removed to the interior of Pennsylvania, 270 miles from his former residence. Under these circumstances, the bail must have been completely surprised, when he was arrested a few days before the return of the writ, at the last term, and as all reasonable diligence has since been used by the bail and his principal to effect a surrender, it is right, that the rule, ex gratia, should be extended beyond eight days after the return of the writ. I place our interference in favour of the bail, upon the ground, that the plaintiff has himself prevented a surrender long ago, by throwing the bail off his guard ; and he ought not, and shall not now be permitted to avail himself of his own gross negligence or fraudulent contrivance, in order to fix the bail. The case of Aylett v. Hartford and Richards, (2 Bl. Rep. 1317.) and which is mentioned by Lord Commissioner Wilson, in the case ex parte Wright, (2 Ves. jun. 9.) is very much to our present purpose. In that case, a defendant was sued, and bail put in before bankruptcy. Afterwards, the defendant became a bankrupt, and the debt was proved, and the creditor acted [481] under the commission. The bail omitted to surrender the principal, because, as the creditor was proceeding in another way, they thought they had no occasion to look after him, and then the principal ran away. When the creditor, afterwards, proceeded to charge the bail, the court of C. B. would not allow the plaintiff to proceed, because he had lulled the bail asleep. The bail do not ask so much in the present case. The principal is here ready to be surrendered, and so he has been, since nearly the close of the last term ; and the bail only ask for leave to surrender. Rule granted, on payment of costs of the suit on recognisance.