
    THE BANK OF GENEVA a. REYNOLDS.
    
      Supreme Court, Eighth District;
    
    
      General Term, Sept., 1860.
    Bail.—Surrender after Suit brought.—Appeal.
    A defendant who had given bail, left the country for India, without the knowledge of his bail, and they knew nothing of his intention to return; but as soon as they learned that he had returned, and was within their reach, they applied, pending suit against them, for further time to surrender him. Held, that they were not chargeable with laches.
    Where the inability to make the surrender arose from the continued absence of the principal from the country, it can make no difference whether the continuance of the absence is occasioned by sickness or imprisonment, or deliberate refusal of the principal to return within the reach of his bail.
    Where an application is made for leave to surrender after the time allowed by law, it rests in the favor of the court; and no further time should be given if the defendants have the means in their hands of indemnifying themselves in case of a recovery against them.
    
      It seems, that it should be shown, as a part of the application, that the bail had no indemnity.
    The provisions of the Code. (§ 191) have made no change in the practice in respect to the period of time after the commencement of the action against the bail, within which the application for further time may be made, nor in respect to the grounds upon which the allowance of further time may be granted.
    An order made on the application of bail for leave to surrender their principal after the time allowed by law, is in the discretion of the court, and is not appealable.*
    * The provision of the Code on this subject, is as follows: The bail may be exonerated, either by the death of the defendant, or his imprisonment in a state-prison, or by his legal discharge from the obligation to render himself amenable to the process, or by. his surrender to the sheriff of the county where he was arrested, in execution thereof, within twenty days after the commencement of the action against the bail, or within such further time as may be granted by the court. (Code of Pro., § 191.)
    The following are cases in this State on the grounds of allowing surrender ox exoneration:
    
      Death.—If the principal is dead, the bail are entitled to be discharged. They have themselves a right to make the motion for such discharge. (Merritt a. Thompson, 1 Silt., 550, and see cases there cited.)
    As to the former rule, however, see White a. Blake (22 Wend., 612), and Olcott a. Lilly (4 Johns., 407), in the latter of which cases it was held that the death of the principal after the return and filing of the ca. sa., was not ground of relieving the bail; for after the bail are fixed, de jure, they take the risk of the death of the principal.
    Imprisonment.—Where the defendant was committed to prison for life, an exoneretur was granted to the.bail. (Cathcart a. Cannon, 1 Johns. Cos., 28.)
    Where the defendant was sentenced to state-prison in another State for thirteen years. Sdd, that he was taken out of the power of his bail, and an exoneretur should he granted to them. (Loflin a. Fowler, 18 Johns., 335.)
    But in the case of Phomix Fire Insurance Company a. Mowatt (6 Cow., 599), it was held, that mere imprisonment within the State,—e.g., on sentence to the penitentiary for two years,—was not ground for granting an exoneretur.
    
    In Bignell a. Forrest (2 Johns., 482), the defendant was imprisoned on a charge of felony; and he was brought up on habeas corpus and surrendered by his bail, and they thereupon were exonerated.
    
      Discharge of principal's obligation.—An exonoretur is not to be granted on the ground that the debt in the suit against the principal has been satisfied. Such matter must be pleaded. (Mechanics’ Bank a. Hazard, 9 Johns., 392.)
    Where the defendant neglected to plead his discharge in insolvency, and judgment was entered in the suit, the court refused, on application of his bail, to order an exoneretur. (Mechanics’ Bank a. Hazard, 9 Johns., 392 ; Post a. Riley, 18 lb., 54 ; Campbell a. Palmer, 6 Cow., 596.)
    The rule, that where a defendant is discharged under the insolvent act, the court will discharge the bail on motion, is grounded on the idea that an actual surrender would be an idle ceremony, because the principal must be immediately liberated; and it does not apply when a sci. fa. has been issued, and a default taken for not pleading the discharge. (Franklin a. Thurber, 1 Cow., 427.)
    The fact that the plaintiff issued both a fi.fa. and a ca. sa., under the former of which he levied a part of the debt, does not entitle the bail to be exonerated. (Olcott a. Lilly, 4 Johns., 407.)
    Where, before the time to surrender had expired, a statute was enacted by virtue of which defendant became exempt from arrest, the bail were held entitled to an exoneretur, on the ground that the statute was equivalent to a surrender. (White a. Blake, 22 Wend., 612; Dunham a. Macomber, 5 Wend., 113.)
    
      Plaintiff’s interference.—Where plaintiff himself prevented a surrender by throw ing the bail off his guard, he ought not to be permitted to avail himself of his own gross negligence or fraudulent contrivance, in order to fix the bail. In such case, leave to surrender should be granted, though after the time. (Livingston a. Battles, 4 Johns., 478.)
    Appeal from an order giving bail further time to surrender their principal.
    This was an action against bail. After it was commenced, their principal returned from abroad, and they thereupon applied, on grounds which are stated in the opinion of the court, for further time to surrender him. The application was granted hy the court at special term, and the plaintiffs appealed.
    Where the creditor,, on receiving a part of the debt from the principal, entered into a stipulation not to proceed against him until after a certain day, and this stipulation induced the principal to leave the State ;—Held, that this act exonerated the bail. (Rathbone a. Warren, 10 Johns., 587.)
    After the recovery of judgment against the principal, but before any execution had been taken out against his person, the plaintiff agreed that he might go out of the jurisdiction of the court to the State of Alabama, and that all proceedings on the judgment should be stayed until his return to New York. In consequence of the arrangement, the principal debtor left the State before any execution had been issued against his body, and had not returned at the time suit was commenced against the bail. Held, that the agreement, being made without the knowledge of the bail, operated to discharge him, and this, whether it was made with or without consideration. (Clark a. Niblo, 6 Wend., 236; affirming S. C., 3 lb., 24.)
    Surrender.—Whether bail have been indemnified or not, it is enough to entitle them to an exoneretur that they surrendered the principal within the time. Brownelow a. Forbes, 2 Johns., 101.)
    As to the surrender by one of two bail, where they are sued severally, by actions commenced at different times, see Ballard ads. Kibbe (Col. Sf G. Cas., 56), and compare Batten ads. Steward (1 Hall, 38).
    
      Excuses for delay.—Sickness of the bail is a sufficient excuse for not surrendering within the time. (Boardman a. Fowler, 1 Johns. Cas., 413; S. C., Col. C. Cos., Ill); to similar effect is Thomas a. Bulkley (5 Cow., 25), where it was held, that if surrender is delayed by the sickness of the principal, and the bail are ignorant of the fact, so as to be unable to obtain a stay or further time, they are not prejudiced thereby, but are entitled to an exoneretur after the surrender is made. Impossibility of procuring copy of bail-piece in time, was deemed an excuse in Van Rensselaer a. Hopkins (Col. Sf C. Cos., 481). Mistake, as to the return of the writ, was held not a sufficient excusé in Rathbone ce.Warren (4 Johns., 310).
    See these excuses discussed, in Baker a. Curtis (10 Ante, 279).
    
      The power of the court to exonerate the bail, under the Code, after the time had passed, was asserted in Gilbert a. Bulkley (1 Huer, 668); and in Barker a. Russell (11 Earh., 303), it was said that the court might grant relief to the bail, though the original action was in another court.
    
      T. B. Strong, for appellants.
    <r. F. Danforth, for respondents.
   By the Court.—Johnson, J.

—The Code (§ 191) has provided how bail may now be exonerated.

Among other means prescribed, is that of surrendering the defendant to the sheriff of the county where he was arrested, within twenty days after the commencement of the action against the bail, or within such further time as may be granted by the court.

No provision is made in respect to the period of time, after the commencement of the action against the bail, within which the application for further time may be made, nor in respect to the grounds upon which the allowance of further time may be granted. In these respects, it is quite obvious, from the reading of the section above cited, that the Legislature designed not to change the practice, but to allow it to remain as it was before. And it has been, very correctly, as I think, so decided. (Gilbert a. Bulkley, 1 Duer, 668.) ^

Before the Code the practice was well settled, that where bail, by reason of circumstances over which they had no control, were prevented from making the surrender within the regular time, the court would enlarge the time to surrender. And this might be done, although no application had been made, or order to stay proceedings obtained, within the regular time for making the surrender. (Boardman a. Fowler, 1 Johns. Cas., 413; Thomas a. Bulkley, 5 Cow., 25; The Phoenix Fire Insurance Co. a. Mowatt, 6 Ib., 599;. Nichols a. Sutfin, 7 Ib., 422; The People a. Onondaga C. P., 2 Wend., 263.) In Nichols a. Sutfin further time was given even after judgment against the bail, and fi. fa. issued and levied. In that case the attorney of the principal had neglected to file the bail-piece, by reason of which the defendant had been unable to make the surrender. The defendant moved to set aside the j udgment and subsequent proceedings, on the ground that they were irregular, and the plaintiff moved for leave to file the bail-piece nunc pro tunc. The court refused to set aside the proceedings, holding that the plaintiff had been regular. But as the defendant had been prevented from making the surrender by the error of the principal or his attorney in neglecting to file the bail-piece, he was then allowed thirty days’ further time to make the surrender, and to have his exonereiur entered on making such surrender and paying the costs of the action.

The temporary imprisonment of the principal, in another State, has been held good cause for granting further time to surrender, though not for exoneration.

In Thomas a. Bulkley, the principal, who was absent in the State of North Carolina, was sick, and the defendant was ignorant of the sickness and cause of detention, until after the eight days for making the surrender had expired, and the court held that the defendant, being ignorant of the grounds of the motion, was not guilty of laches in not making it before the regular time had expired, and gave .him leave to surrender and enter an exoneretur on payment of costs.

Within the principle of these cases, I entertain no doubt that, aside from the question of indemnity, which will be hereafter noticed, good cause was shown by the defendants for granting to them further time, and also for allowing the application to be made, at this stage of the proceedings against them. Breck, their principa^ left the country without their knowledge, for India, before judgment had been perfected against him, and several months before this action was commenced. They learned of his departure for, and subsequent arrival at, Singapore, in the East Indies, but knew nothing of any design or intention on his part ever to return. Under these circumstances, it is clearly seen, that any effort on the part of the defendant to effect his surrender must have proved fruitless. He was quite as much out of their reach as he would have been had he been imprisoned temporarily in another State of this Union. These were circumstances over which they had no control. The absence furnished no cause for exoneration, and as long as they were ignorant that he intended to return, or that he was about to return, they had no ground upOn which they could apply for further time. The first application was made as soon as the defendants learned that their principal was within their reach. It was made as soon as they had the means of showing to the court that Breck could be reached by them and surrendered, after the occasion for a motion had arisen. Certainly there has been no laches in making the application for further time. Where the inability to make the surrender has arisen from the continued absence of the principal from the country, it can make no difference whether the continuance of the absence is occasioned by sickness or imprisonment, or deliberate refusal of the principal to return within the reach of his bail, being beyond their reach. In either case he is beyond the control of the bail, without their fault, unless they have voluntarily consented to his placing himself in this situation.

It has been seen by the case of Nichols a. Sutfin, that the inability to make the surrender arising from the negligence of the principal, is just as effectual to shield the bail as that arising from his sickness or imprisonment. It cannot be doubted, I think, that the decision would have been the same in that case had the principal or his attorney wilfully, instead of negligently, omitted to file the bail-piece.

Bail have always been favorably regarded by courts, especially in the matter of the surrender of their principal; and very justly so, because the primary object of bail is to secure to the plaintiff the body of the defendant, upon failure to obtain satisfaction out of his property.

It is quite probable, that had the defendants here made application to the court for further time to surrender, during the voluntary absence of Breck, their application would have been refused, even if they could have shown that he designed voluntarily to return, after- an absence of two years; because the court would not allow the mere volition of the principal debtor to delay the remedy of the creditor. But that is not the question here presented. The principal has, unexpectedly to the bail, returned within their reach, the action against them is still pending, and the question is, not what the court would have done had the application been made while the principal voluntarily kept himself out of the power of his bail, but whether now, having the ability, they shall not be allowed to make the surrender, and thus fulfil the primary object of the undertaking. The inability to make the surrender, from whatever cause, is now removed, and I think the cause of it, while it existed, is of no consequence on this application, so long as it is in no way chargeable to these defendants. If it was a "matter over which they had, practically, no control, in respect to its origin or continuance, I think we should allow them now to make the satisfaction to the plaintiffs which they originally stipulated for, on payment of the costs of the action against them, unless it is shown by the papers that they have been indemnified by their principal. This question of indemnity by Breck to the defendants, the court at special term seems not to have noticed, although it was made by the papers on which the motion was opposed.

It does not appear very clearly, by the opposing affidavits, whether the defendants, or either of them, are indemnified. But enough is shown, I think, to raise the question fairly, and to call upon them to show whether they are indemnified in any manner, and if so, to what extent. The application here is strictly to the favor of the court. When the surrender has been made within the regular time allowed by law, the rule seems to be that the bail are entitled to an exoneretur, although they are fully indemnified. (Brownelow a. Forbes, 2 Johns., 101.) But in such case the surrender, and consequently the exoneretur, are matters of substantial, if not technical, legal right. Not so here. The defendants ask a favor, and the court should see whether, under all the facts and circumstances disclosed, it ought to be granted. It seems to me very clear, upon general principles, that no further time should be given, if the defendants have the means in their hands, or at their command, of indemnifying themselves in case of a recovery against them. It is true, that the primary object of bail is not to indemnify the plaintiff, but is for the forthcoming of the body of the defendant. The condition is, that the defendant shall pay the money, or surrender himself to the sheriff in execution, within a particular time. The condition is broken. and the bail sued. The presumption is, that the money is more favorable to the creditors than the body of the debtor in execution, and if the defendants here have the money of the debtor in their hands, or other indemnity, they ought not to be allowed further time in which to surrender the body, to the plaintiffs’ prejudice, when it could be of no possible advantage to them. In such case it could benefit no one, except the debtor, and the law does not, in this regard, favor him. In Merrick a. Vancher (6 Term, 50), the defendant had been sent out of the country under the alien act, of 33 George III., and the court, upon mete suggestion, refused to allow the exoneretur to become absolute, until the bail produced an affidavit, showing that they had no funds of their debtor in their hands out of which they could repay themselves, in case of a recovery against them, or other indemnity. And in Coles a. De Hayne (Ib., 52), where the defendant had been sent out of the country in the same way, upon its being shown that money had been deposited for the purpose of indemnifying the bail, the court refused the exoneretur altogether.

It seems to me that it should properly be shown, as a part of the application, that the bail had no indemnity, and would suffer unless allowed to surrender, before further time should be granted. But certainly where enough is shown on the other side to raise the question, and make it appear probable that indemnity has been given, the order should be denied or withheld until the bail show whether it has or not. It is, in the very nature of things, a matter about which the plaintiff could ordinarily know but little; and the applicants, who know, should disclose, as a condition of being relieved.

I am of opinion, therefore, that the order of the special term-should be reversed, if such order is appealable. I was at first inclined to the opinion that the order was appealable, but upon consultation with my brethren, I find they are 'clearly of the opinion that it is otherwise, and we have determined that the order was a matter resting in the discretion of the court, and is not appealable. We all agree, however, that the discretion in this instance, in view of the facts disclosed in • the opposing affidavits, on the question of indemnity, was improvidently exercised to the prejudice of the substantial rights of the plaintiffs, and that a rehearing ought to be had at the special term.

The appeal must, however, be dismissed without costs to either party.

Appeal dismissed. 
      
       Present, E. Darwin Smith, T. A. Johnson, and Knox, JJ.
     