Belknap v. Davis

The opinion of the court was delivered by Kellogg, J. This was an action of scire facias against the defendant, as bail on mesne process for one Pliny E. Davis. The defendant pleaded the discharge and certificate of his principal, as a bankrupt, setting forth all the proceedings in the court, where the discharge was obtained, anterior to the certificate. Upon this plea issue was taken, denying that any notice was given to the plaintiff of the application for a discharge. Upon the trial of the issue, the only evidence, introduced in support of the plea, was the record of the proceedings in the district court, upon the application of Pliny E. Davis to be declared a bankrupt and discharged from his debts. The objection taken, that the record'is defective and does not show any notice to the plaintiff, inasmuch as it does not show, that the paper deposited in the post office and directed to the plaintiff contained any notice of Pliny E. Davis’ application for a discharge, is not well founded. The record must be received as evidence of every' fact, which can be reasonably inferred from the entire record. And upon inspection of the record we think no reasonable doubt can be entertained, that the plaintiff received the required notice. Indeed this objection was not much relied upon at the argument, and certainly is not sustained by reference to the record. At the hearing in the court below the plaintiff interposed a motion [412] for judgment, founded upon the supposed insufficiency of the .defendant’s plea; which motion was overruled by the county court. It is now insisted, that the matter set forth in the plea does not amount to a defence to the action, — that the plea of bankruptcy is a personal defence, of which the bail 'cannot avail himself by plea. Several authorities have been introduced to sustain this position ; and it would seem by the English practice such a plea could not be allowed, at least, after the bail had become fixed; and by the settled practice of the English courts bail were held to be fixed upon the return of non est inventus upon the ca, sa. Until that time the bail was entitled to surrender the principal, as matter of right. And in England, if the principal died before the bail was fixed, it was ground for relief, and, according to their practice, it was granted upon motion and an exonereter entered upon the bail piece; but the death of the principal, after the bail was fixed, was no ground of relief. The English rule upon this subject has been adopted in New York; and in Olcott v. Lilly, 4 Johns. 407, Kent, J., in delivering the opinion of the court, says, “ the time, which is allowed the bail ex gratia, is at their peril, and they must surrender. He farther remarks, in the same case, “ A number of cas.es in this court have gone so far, as to relieve the bail, if the principal had been discharged under the insolvent act, any time before the period allowed to the bail ex gratia had expired; and these decisions went upon the principle, that the discharge was equivalent to a surrender, and that it would be an unnecessary circuity to have a formal surrender made, since the principal would immediately be entitled to a discharge ; and the latest decisions in England seem to have gone the same length;” — and he cites a number of cases to this point. In the cases above cited the bail was held entitled to relief, and the relief was obtained upon motion, in conformity to the English practice ; — and may not the bail avail himself, by plea, of the discharge of the principal in bankruptcy? There are various matters, which the bail may plead to the scire facias by way of defence. He may avail himself of the death of the principal, provided it occurred before the return of non est inventus upon the execution. So the bail may plead payment, or satisfaction, of the judgment against the principal. So if the principal surrender himself in discharge of his. bail, before the bail is fixed, the bail may plead this .matter in discharge. 2 Com. .Dig. 48, 59. [413] In Martin v. O’Hara, Cowp. 823, it was held, that where the principal is a bankrupt, and is clearly entitled to his discharge, he need not be surrendered by his bail, but the court will, in the first instance, order an exonereter to be entered upon the bail piece. Lord Mansfield remarked, that “ formerly the method was for the bail to surrender the principal, and then for the principal to move to be discharged. But of late, where a bankrupt is clearly entitled to his discharge, the court, to avoid circuity of action, have ordered an exonereter to be entered on the bail piece, without the form of a regular surrender of the bankrupt by his bail.” So in Woolley v. Cobbe, 1 Burr. 244, it was held, "that where the bankrupt obtained his certificate before the bail was fixed, the bail should be discharged, — if after the bail was fixed, they should remain liable. These cases proceed upon the principle, that no cause of action had accrued against the bail; and we think the authorities fully sustain the position, that ^ie bail may plead any matter, which shows there was no cause of action against him. The pleadings show, that the judgment against the principal was rendered on the first of November, 1842, and that the return of non est inventus on the execution was made on the thirtieth of December, 1842, and that the discharge and certificate of the bankrupt were obtained on the twenty sixth of December, 1842, which was prior to the bail becoming fixed. The result is, that, the principal having obtained his certificate of discharge before the bail was fixed, no cause’ of action accrued against the bail, and this matter the bail might well plead as a defence to the action. The judgment of the county court is therefore affirmed.