
    Andrus against Bealls and others. 
    
    UTICA,
    August, 1824.
    writ of declaration, pleas, &c. It is no answer for the sureties in an action on a Becord of pro. ceedings in sou ment inJ debt ^“ndh®f s”d^ puty sheriff, mc,ud“g the puty sheriff g.lvu!' faithful perfor-
    dujy of deputy, &c. aUeged^™6 die^ault, °f ,th® deputy, he had become insoisequence °°oi which the sued! the1 sheriff h™ fice, 
    
    fence for Sure-5es in ana<?" bond of inth^obiígeeneglec,ted, to de* fend the smt against him, by which he was damnified within the terms of the bond.
    Thus, where a deputy sheriff collected money op afi. fa. and neglected to pay it over, and the sheriff being attached for not returning the writ, paid the money voluntarily, without defending the attachment suit; yet held, that the sureties in the bond of indemnity given by the deputy to the sheriff, were liable.
    Placita of August term, 1823—Memorandums of warrants of attorney—memorandum of May term, 1823. \
    
      Jefferson county, ss. The people &c. sent to the sheriff of Jefferson county their writ close in these words, to wit: The people, &c. to the sheriff of the county of Jefferson, greeting: Whereas David J. Andrus, heretofore, to wit, in the term of August, A. D. 1819, in our supreme court of judicature, before our justices of the same court, at, &c. by bill without our writ, and by the judgment of the same court recovered against Joseph D. Bealls, David Smith, David Hale, Joseph Sterling, Elishu Morton, Almerin Tucker and Caleb Earl, a certain debt of $10,000; and also $91.95, which in the same court were adjudged to the said David *J. Andrus for his damages which he had sustained as well on occasion of the detaining of that debt, as for his costs and charges by him about his suit in that behalf expended, whereof the said Joseph D. Bealls, &c. were convicted as by the record and proceedings thereof remain- . j . . ° mg m our said court, before our justices aforesaid, manifestly appears. And afterwards now here, comes the said David J. Andrus, before the justices aforesaid, by R. Lansing, his attorney, and according to the form of the statute in such case made and provided, gives the same court here to understand and be informed, that the said judgment was so recovered against the said Joseph D. Bealls, &c. as aforesaid, upon and by virtue of a certain bond or writing obligatory in the penal sum of $10,000, bearing date the 18th day of March, A. D. 1816, sealed with the seals of the said Joseph D. Bealls, &c. under and sub- . ject to a certain condition thereunto subscribed, whereby after reciting that whereas the aboie named Joseph D Bealls was, at his special instance and request, appointed by him, the said David J. Andrus, a deputy sheriff, under him the said David J. Andrus, within and'for tne county of Jefferson, it was declared by the said condition, that if the said Joseph D. Bealls did and should faithfully serve and execute within the said county of Jefferson, all writs, warrants, precepts and processes to him directed and committed, issued from good and lawful authority, and should perform and execute all the duties pertaining to the office of a deputy sheriff, required by the laws of the state of New York, and should save and keep harmless and indemnified the said David J. Andrus, his executors and administrators, of and from all actions, suits, troubles, costs, charges, damages and expenses whatsoever, on account or by reason of any mal-feasance, mis-feasance or non-feasance of him the said Joseph D. Bealls, in his said office' of deputy sheriff, then the said obligation should be void and of no effect, otherwise the same should be and remain in full force and effect. And the said David J. Andrus also gives, the sáid supreme court of judicature here to understand and he informed, that the hill of him the said David J. Andrus, in the said action'in which he so recovered such judgment as aforesaid, was-exhibited upon *the first Monday of January, in January term, A. D. 1819; and that said action was commenced for and upon certain breaches of the condition of the aforesaid writing obligatory, by the said Joseph D. Bealls, before the exhibiting of the bill aforesaid. And the said David J. Andrus, for a further and other breach of the said condition of the said writing obligatory, according to the form of the statute in such case made and provided, gives the said court of the people - aforesaid "here to understand and be informed, that after the making of' the said writing obligatory, and while the said Joseph D. Bealls was deputy sheriff as aforesaid, he did not execute the office of deputy sheriff according to law, nor did he keep harmless and indemnify the said David J. Andrus of and from all actions, suits, troubles, ccsts,
    .Declaration on judgment sci. fa. setting forth further breach on the bond of a deputy sheriff, and sureties, being a copy of the writ of sci. fa. (Vid. 3 Chit. Pl. 1289, 5th Am. from 4th Lend, ed.)
    Condition of bond recited.
    Commencement and object of the original action.
    Further
    breach.
    
      charges, damages, and expenses whatsoever, on account of any mal-feasance, mis-feasance, or non-feasance of him the said Joseph D. Bealls, in said office of deputy sheriff,* but that the said David J. Andrus hath been made liable to the payment of a large sum of money, to wit, the sum of $77 31, on a testatum fieri facias issued out of the supreme court of judicature of the people of the state of New York, in favor of Wheeler Barnes, plaintiff, against Abel Franklin, Joseph Dickey and Lodowick Salisbury, defendants, which said writ of testatum fieri facias was directed to the sheriff of Jefferson county, and was committed to the care of Joseph Í). Beálls, as deputy sheriff of said David J. Andrus, the said David then being sheriff'"of said county of Jefferson, and while- the said Joseph D. Bealls exercised said office of deputy sheriff, to be executed according to law, which said sum of money, together with the sum of $87 69, being for interest due the said Wheeler Barnes on the monies directed to be levied on the execution aforesaid, and the costs of collecting the same, in the whole amounting to a large sum of money, to wit, the sum of $165, the said David J. Andrus has been obliged to pay, and hath paid to said Wheeler Barnes, to witj on the 31st day of January, 1823, in consequence of the negligence and fraud of the said Joseph D. Bealls, while deputy sheriff as aforesaid, and in consequence of the said Joseph D, Bealls not paying the money received by him on said execution either to the said David *J. Andrus or to said Wheeler Barnes, which last breach of the condition so assigned, the said David J. Andrus doth aver and give the court here to understand and be informed, is a further and other breach of the condition than the said breaches for and by reason of which he obtained said judgment so recorded by him as aforesaid, and for which said other and further breach of the aforesaid condition of the said writing obligatory the said David J. Andru, hath humbly besought us to provide him a proper remedy: And we being willing that what is just in this behalf should be done, do, according to the form of the statute in such case made and provided, command you, that by honest and lawful m°n of your bailiwick, you make known to the said Joseph D. Bealls, &c., that they be before our said justices of the supreme court of judicature aforesaid, on the first Monday of May next, at the City Hall of the city of New York,, to show cause why execution should not be had and awarded against them upon said judgment so obtained as aforesaid, for the damages which the said David J. Andrus hath sustained by reason of the said further and other breach of the said condition of the said writing obligatory, if it shall seem expedient for the said Joseph D. Bealls, &e., so to do, and further to do and receive what our said court, before our justices thereof, shall'then and there consider of them in this behalf; and have you then ,there the names of those by whom you shall so make known to them, and this writ. Witness, Sec. at, &c., the 18th day of January, A. D., 1823. At which day, before, &c. at, Sec. comes the said David J. Andrus, by R Lansing, his attorney; and the sheriff, to wit, Jason Fair banks, Esquire, sheriff of Jefferson county aforesaid, here now returns, that by John Doe and Richard Roe, honest and lawful men of his bailiwick, he made the within named Joseph D. Bealls, &c. to know that they be before the'said justices, at the day and place in the said writ mentioned, to show, &c. as by the said writ they are required, and as the said sheriff is therein commanded; and that the "said Caleb Earl had nothing in his bailiwick by which he could make him know, nor is he found in the same. And the said Joseph D. Bealls, dec., being solemnly demanded, come by William D. Ford', their attorney, *and hereupon the said David J. Andrus prays that execution may be adjudged to him against the said Joseph D. Bealls, Sec., of the debt and damages aforesaid, according to the force, form and effect'of the said recovery, &c.
    And the said Joseph Sterling, Caleb Earl and Almerin Tucker, three of the defendants above named, come and defend the wrong and injury, when,- Sec. and say that the said plaintiff", hath not sustained any damage by reason of any matter, cause, or thing in the said condition of the said bond or writing obligatory .contained, neither hath the said plaintiff become liable to pay, or been obliged to pay,
    
      ■ hath paid the said sum of money in the said assignment " the said supposed other and further breach of the said condition, as is set forth in the plaintiff’s declaration, by reason of any fraud or negligence of the said Joseph D. Bealls, in the said office of deputy sheriff under the said plaintiff, as sheriff as aforesaid. Wherefore they say that the said plaintiff ought not to have execution against the said three defendants for the said supposed other and further breach of the said condition of the said bond or writing obligatory mentioned in the declaration of the said plaintiff; and of this they put themselves upon the country, &c.
    And the said David Hale, David Smith, and Elihu Morton, three other of the said defendants above named, for plea in this behalf say, that after the mating of the said bond in the declaration of the said plaintiff mentioned, and before the delivery of the said writ of testatum fieri facias to the said Joseph D. Bealls, the said Joseph D. Bealls was, and did become totally insolvent, which fact being well known to the said plaintiff and the said three other defendants, they, the said three other defendants, before the delivery of the said writ to the said Joseph D. Bealls, urged and requested the said plaintiff to amove and discharge the said Joseph D. Bealls from the said office of deputy sheriff, for the purpose of indemnifying them, the said three other defendants, as the bail of the said Joseph D. Bealls against the insolvency of the said Joseph D. Bealls, which the said plaintiff neglected to do; whereby the said three other defendants, as the bail of the said Joseph D. Bealls, were deprived of any means of indemnifying *themselves against the insolvency of the said Joseph D. Bealls; and this they are ready to verify; wherefore they pray judgment if the said plaintiff ought to have execution against them, for the said other and further breach of the said condition of the said bond, as set forth in the said declaration.
    And the said three defendants last named for a further plea, &c. say, that the said writ of testatum fieri facias mentioned in the plaintiff’s declaration, was delivered to the said Joseph D. Bealls after the issuing thereof, to wit, on the 13th day of January, 1818; and after the return day thereof, to wit, on the 20th day of April, 1822, a, rule was entered in this same court, requiring the said David J. Andrus to return the said testatum fieri facias within 20 days after he should have notice of the said rule, or that an attachment would issue against him; notice of which said rule was given to the said David J. Andrus after the entry thereof, to wit, on the 30th day of April aforesaid, according to the rules and practice of the said court; previous to which last mentioned day, and after the return day of said writ, the said Joseph D. Bealls became notoriously insolvent; and afterwards, to wit, on the 20th day of July, in the year last aforesaid, the said David J. Andrus, not having returned the said writ in pursuance of'the said rule, a writ of attachment was issued against him, for his default in not returning the said writ, in favor of the people of the state of New York, directed to the sheriff of Jefferson county, by which said writ the said sheriff was commanded to attach the said David J. Andrus, and him safely keep, ¡so that he might have him before the justices of the people of the state of New York, of the supreme court of judicature of the same people, at the capítol in the city of Albany, on the first Monday-of August then next, to answer for certain trespasses and contempts in the said court done and committed ; and after the delivery of the said writ of attachment to the said sheriff, and before the return day thereof, to wit on the first day of August, in the year last aforesaid, he the said sheriff arrested the said David J. Andrus by his body, by virtue of the said writ, and detained him in his custody thereon; until afterwards, to *wit, on the same day and year last aforesaid, the said David J. Andrus appeared before one of the judges of the court of common pleas in and -for the county ¡of Jefferson, and then and there, with one George Andrus as his surety, entered into a recognizance before the said judge, conditioned that the said David ( J. Andrus should appear according to the exigency of the said writ; and the sheriff then and there, after the taking of the said recognizance, permitted the said David J. An dms to go wheresoever he would, out of his custody. And the said three defendants last named further say, that the said David J. Andrus did not appear according to the exigency of the said writ, but made default therein, by means whereof the said recognizance became forfeited, and was afterwards, to wit, on the seventeenth day of August afore said prosecuted in this same court; and afterwards, to wit, at the October term of this same court, of the year last aforesaid, judgment was recovered by default against the said David J. Andrus and George Andrus, for the penalty of the said recognizance; upon which judgment execution issued, directed to the sheriff of Jefferson county, and upon that execution and no other, the said David J. Andrus paid the said $165 mentioned in the said declaration; so the said three defendants last named say that the said David J. Andrus paid the said sum of money for his own negligence and default, and not for any default of the said Joseph D. Bealls, in his said office of deputy sheriff, under the said plaintiff, as sheriff as aforesaid; and this they are ready to verify. Wherefore, &c. Bealls also pleaded. Imparlance to August term, 1823. Similiter as to the first plea, and demurrer and joinder as to the 2nd and 3rd pleas.
    
      R. Lansing & E. Ten Eyck, in support of the demurrer.
    1. As to the plea of notice to remove the deputy, if available at all, it must be so as setting up a release by operation of law, to which it bears no analogy, 
       We agree that courts have gone far to protect sureties against the fraud and connivance of the obligee; and when any act has been done by him which may in any way injure the surety, courts are very glad to lay hold of it in his favor. But in all the cases where sureties have been relieved, it was on account of *some act of the obligee contrary to good faith; or the neglect to do some act' required by law, or by the express agreement of the parties. The People v. Jansen,  which will doubtless be relied on by the defendants, bears no analogy to the present. So also of Rathbone v. Warren, 
       In the first the plaintiffs had disobeyed the express injunctions of the statute which required them to remove the defaulting officer; and the ease is put upon that ground. The latter was on the ground that the payee had, by a written agreement, extended the time of paymént without the consent of the surety. Here was no duty to remove Bealls.  Only three of the bail made the request. The other three do not join in the plea, and must be considered as consenting to his continuance in office. Insolv ency does not incapacitate him. Poverty will not do it He may still be honest. . The bond was general, -during his continuance in .office, which was during the plaintiff’s pleasure. This the bail knew when they gave the bond; and the duration of their liability was known to depend on the same pleasure. A surety cannot discharge himself whenever he pleases. If these bail are discharged, the same rule must apply to officers of government, who hold their offices during pleasure, which, we believe, was never pretended.
    The only analogous case is Payn v. Packard,  There the plea was that the surety was injured by the plaintiff’s refusal to prosecute the principal on request; and it was holden good. But here is no averment of loss, or that the default was the effect of insolvency.
    Again; the plea is bad because nothing can be pleaded to a sci.fa. which might be pleaded to the original action.  The plea should therefore aver expressly that the matter of defence arose after the original judgment: and not leave this to inference. It is, quasi, a plea puis darrein continuance, which requires great certainty, 
    
    
      2. The second plea to which we have demurred, is no answer to the declaration. This sets up damages arising from Bealls’ neglect to pay over monies; and the manner in which we were proceeded against is no defence. The defendants might as well set up any other proceeding in bar. Besides, *the very facts set up in this plea are sufficient to entitle the plaintiff to recover; for the plea must be based upon the idea that Bealls had neglected to return the fi-fa. mentioned. If of any avail, it goes only to the costs; and is bad as being an answer to only a part of the action.
    
      
      W. D. Ford <§• D. Tillinghast, contra,
    relied on the cases of Payn v. Packard and the People v. Jansen, which they said are not distinguishable in principle from the "present case. The former furnishes a precedent for the first special plea. It underwent great consideration, and was affirmed in the court of errors, 
       In King v. Baldwin,
      
       the chief justice in delivering the opinion of the court, says of that case, “The principle adopted was, that where the creditors did an act injurious to the surety, or omitted to do an act when required, which equity and his duty to the surety enjoined it upon him to do, and which omission was injurious to the surety, in either of these cases the surety would be discharged.” If the surety can protect himself by calling on the creditor to enforce payment, the reason is much stronger that he should be heard when he requests that a further debt should not be incurred. The People v. Berner & Borst 
       also sustains this plea.
    It is a plain rule of common sense, that a surety ought never to be bound against his will, nor for a greater length of time than he sees fit. Common honesty and fair dealing require that when a man becomes bail or surety, he should have the power of extricating himself whenever he pleases. So is the case of special bail and bail to the sheriff. A request to the authority having the power of removal, would undoubtedly be sufficient for the surety in all cases, whether-of the government or individuals.
    True, as to the public, Bealls was in office during the plaintiff’s will; but when the rights of the surety are in question, he must exercise that will for their benefit, or take the consequences upon himself. The sureties do not seek his discharge; but simply to secure themselves.
    *It appears on the face of the declaration that this matter of defence arose after judgment. Besides, the rule confining a plea to a set. fa. to subsequent matter, applies to those cases only where execution is sought for the money recovered by the original judgment.
    The facts in the second plea amount to a release by operation of law. Whenever the Obligee does any act, or omits to do any act, by which the terms of the original undertaking are varied, the obligors are exonerated from liability. ' Permitting the recognizance to be forfeited by his non-appearance, precluded all defence. Yet there was a defence. Barnes neglected for 4 years' to call for a return of the fi. fa; and in the' mean time Bealls failed. Such a delay discharged the sheriff from liability. In Rathbone v. Warren, all the cases upon this point are ably reviewed by the late chief justice, He says, “there can be no transaction with the principal debtor, without acquainting the surety who has a deep concern in it. You cannot keep him bound, and transact his affairs Without consulting him.” The forfeiture of the recognizance shut out the defence of laches, and worked such a change in the rights of the parties, as to make the doctrine of Rathbone v. Warren applicable.
    Again; the plea shows that no default has been committed by Bealls, for which Andrus has been made liable. The recovery was for Andrus’ non-appearance upon the recognizance, as is confessed by the demurrer. Had he appeared on the return of the attachment, it is shown expressly that he would have been discharged. In the People v. Spraker, it is said that the recovery upon the recognizance is only argumentatively evidence of default in office by the sheriff. Equity and good faith towards the bail required that he should have appeared and saved their defence. His own, not Bealls’ neglect, was the occasion of his being made liable, !/
    
    
      
       See also Bernard v. Darling, 11 Wen. 28.
    
    
      
       This cause was decided in August term, 1824.
    
    
      
      
         Bac. Abr. Release (B).
    
    
      
       4 Ves. 833. 1 Madd. Ch. 191, and cases there cited.
    
    
      
       7 John. 332.
    
    
      
      
         10 John. 587.
    
    
      
       The People v. Berner, 13 John. 383.
    
    
      
       13 John. 174.
    
    
      
      
         2 Tidd. 1047. 1 Salk. 2. Cook v. Jones, Cowp. 727. McFarland v. Irwin, 8 John. 77.
    
    
      
       1 Chit. Pl. 637.
    
    
      
       17 John 384.
    
    
      
      
        i) 17 John, 384.
    
    
      
      
         13 John. 383.
    
    
      
      
         10 John. 594, 5.
    
    
      
      
         The People v. Stevens, 9 John. 72. The King v. The Sheriff of Surry, 7 T. R. 452.
    
    
      
       18 John. 391.
    
   Sutherland, J.

at first, thought the second plea, viz. of notice to revoke, &e. a good one, and that the facts stated ope rated to release the defendants, Who were sureties; though *he held the third plea bad, as the sheriff was not bound to defend on the attachment,

Savage, Chief J. and Woodworth, J. were, however, against both pleas; and

Judgment was for the plaintiff.

END OP THE CASES IN THE SUPREME CGCBt. 
      
       Tide Stone v. Hooker, ante 154.
     