Jones v. Raiguel

Mr. Justice Mercur, delivered the opinion of the court May 2d 1881. The main question in contention here is this: When .a person has become bound by recognizance as bail for stay of execution in a judgment against a husband and his wife, and after the stay has fully expired, can he relieve himself from liability by showing the judgment was improperly taken against the wife? The equitable demand of the plaintiff in the judgment is unquestioned. The defence which it is now alleged the wife might have successfully made rested on her personal privilege, which she did not interpose. She suffered judgment to be entered against herself and her husband jointly. They were satisfied to let it stand. They voluntarily gave security to obtain the benefit of a stay of execution. The bail voluntarily assumed the liability whereby he delayed the plaintiff for nine months in collecting the judgment. At the expiration of that time his liability became fixed. . The terms of his recognizance bound him to pay it. The legal requirements of the statute commanded him to pay it. It has not been reversed or vacated. The naked averment in the affidavit that the judgment is absolutely void, is the expression of an opinion which is wholly insufficient to prevent judgment being entered in this case. No fact is stated showing its invalidity as against the husband. Suppose it should be proved to be void as against the wife by reason of her personal disability, it nevertheless remains in full force against her husband: Unangst v. Fitler, 3 Norris 135; Hope v. Building Association, not yet reported; Leonard v. Duffin, 9 W. N. C. 155. A striking off the judgment against the wife would not impair its validity against her husband. The probability is the judgment would have been collected long before the nine months expired,’if it had not been prevented by the intervention of the plaintiff in error. He now stands in a very unfavorable position to invoke the aid of any equitable principle to relieve him from his legal obligation: Gibbs & Co. v. Alberti, 4 Yeates 373; Armstrong’s Appeal, 5 W. & S. 352. The other objection that a copy of the whole record of the judgment should have been filed is without force. This action was on [441] the recognizance. A copy of it was filed. That is all which the law or rule of court required: Keyser et al. v. Dialogue, 4 W. N. C. 11. Judgment affirmed.