
    Brown against Van Duzen.
    NEW YORK,
    October, 1814.
    In an action rLognmnce a tic?s conrVon ftmocumbent on the piaimifF to prove tile recognisance, ment of a suit, term6 of6 "the
    enter "into™ny show’timt the writ was not issued with a bonajide intent to have, it served, and that ment°™f enthe sive.'vaS coll“"
    merehedvhv»ry the iherii'Va commence- and whether the i ecognisanee ought not the "name” of €iMiire.peopIe"9
    IN ERROR, from the court of common pleas of Orange county. This was an action of debt on a recognizance for ”fty dollars, taken before a justice of the peace, upon a plea of Pursuant to the 10th section of the twenty-five dollar act, brought by Brown against Fan Duzen, who was im pleaded with . 1 Reynolds. In the action before the justice, Brown was plaintiff and Reynolds defendant, and Fan Duzen entered into the recognisance as surety for Reynolds. The breach assigned by the plaintiff in his declaration was, that Reynolds did not appear and Put in bail> at the next court of common pleas, to a suit commence(l against him by the plaintiff, according to the condition of the recognisance. The defendant pleaded nil debet, and . i " i gaye notice of evidence that the plaintiff had discharged the recognisance*
    The plaintiff produced and proved the recognisance, and that be issued a w,rit in trespass, in the Orange county common pleas, returnable at the next term after the recognisance was taken, !n consequence of the death of the deputy sheriff shortly after it was delivered to him, was lost, and the defendant therein had never been arrested. An entry was made on the roll of ... . , — . . the issuing of this writ. 1 he plamtin attempted to prove that the deputy sheriff endeavoured to serve the writ, and that Reynolds eluded him, and kept himself armed to prevent an arrest.
    The defendant, Van Duzen, went into evidence to show that the issuing the writ against Reynolds was a feigned proceeding; and declarations and acknowledgments by the plaintiff were proved, to this effect; 66 that it was in his power to have taken Reynolds, if he wished, but that it had not been his intention to do so, and that he had some other person in view to charge.” To this evidence the plaintiff objected, and on his objection being overruled, the bill of exceptions was taken. The jury below gave a verdict for the defendant.
    
      
      Fisk, for the plaintiff in error.
    The only question is, wheiher improper evidence was not admitted by the court below. It was not competent to give in evidence the confessions or declarations of Brown. This recognisance could not be discharged by an accord and satisfaction. It can only be discharged by matter of as high a nature; nor is accord and satisfaction a plea to an action of debt on a bond, conditioned to do a collateral thing, nor where a less sum is paid. 
    
    
      C. Buggies, contra.
    
      Nil debet was a proper plea, and the only question is, whether the evidence offered was admissible. A surety may set up in his defence a neglect of the principal, in prosecuting for a default. Here was a fraudulent collusion between the obligee and principal to charge the surety. Where A. becomes surety to B. for the good conduct of C., in the service of B., and B, conceals from the surety the acts of misconduct of C., it will discharge the surety. 
    
    
      
       1 Comyn's Dig. 181. Accord, A. 2. 2 Cro. 99.
    
    
      
      
        1 Johns. Rep. 391.
    
    
      
      
         People v. John. Rep. 332
    
    
      
      
        Peel v. Tatlock, 1 Bos. & Pull. 419.
    
   Platt, J.

delivered the opinion of the court. It was incumbent on the plaintiff to prove, 1. The recognisance; and, 2. That he commenced a suit for the trespass, before the next term of the common pleas.

Whether merely issuing the writ and delivering it to the sheriff to be served, without actual service, and without an alias and pluries capias, can be deemed a commencement of the suit, in the sense of this recognisance; and whether the recognisance ought not to be taken to the people, are questions which need mot be decided in this case.

. It was indispensably necessary for the plaintiff to prove at least the delivery of the writ to the proper officer, with a bona fide intention of having it served; and if the defendant could show that it was a, feigned proceeding, without intention on the part of the plaintiff to have it served, or could show ground to presume that the plaintiff had instructed the officer not to serve the writ, it was pertinent evidence; because it went to disprove « the commencement of the suit,” in the largest sense of the phrase.

If the plaintiff could have succeeded in proving the suit com» -mienced, he would have recovered 50 dollars of the surety, without encountering the plea of title set up by Reynolds. „ . J , . . r Hence, the materiality of that evidence.

The counsel have argued the case as though the evidence offered by the defendant was intended to operate as a direct release or discharge of the recognisance, whereas, it goes to contradict an essential averment in the declaration; to wit, the commencement of the suit against Reynolds. In the latter view it was proper evidence; and the judgment below ought to be affirmed.

Judgment affirmed.  