
    NEW YORK COMMON PLEAS.
    McIntyre agt. Borst.
    Where a surety signs an undertaking in an action of claim and delivery of personal property, and his sufficiency as bail is excepted to, and he fails to" justify, and after the period allowed for the justification has elapsed, and after another surety has been substituted, the plaintiff’s attorney countermands the exception, the first surety, notwithstanding the countermand, is not liable.
    
      New York General Term,
    
    
      February, 1864.
    Daly, Brady and Hilton, judges.
    
    Appeal from a judgment against the defendant as surety.
   By the court, Brady, J.

The defendant Borst signed an undertaking in an action of claim and delivery on behalf of the plaintiff in the action. His sufficiency was excepted to. He was examined and rejected, but the plaintiff’s attorney, after the period allowed for the justification had elapsed, and after another surety had been substituted, countermanded the exception. The question which arises upon these facts is, whether this defendant is liable upon that undertaking. The rule is well settled that if bail do not justify within the time allowed by the. rules of the court, they cease to be bail, and the plaintiff cannot hold them by giving notice that he waives the exception. (Flack agt. Eager et al., 4 Johns. 185 ; The People agt. Judges of Onondaga, 1 Cowen,, 54; Thorp agt. Faulkner, 2 Cowen, 514; Lawrence agt. Graham, 9 Wend. 477.) It is otherwise if the notice of waiver be served before the period for justification has expired. (The People agt. Superior Court, New York, 20 Wend. 607.)

'In Van Dyne agt. Coope, (1 Hill, 557), it was decided, however, that this doctrine did not apply to the sureties on a replevin bond under the statute. No cases are cited in support of this distinction, and no reasons are assigned why it should exist. Justice Cowen says that an exception entered on a replevin bond followed by the mere neglect of the sureties to justify will not work their discharge. This conclusion seems to have been influenced by the condition of the bond, a strict compliance with which was required, unless prevented by the default of the obligee or a release, &c. It is true, that the form of the undertaking and the obligation of the surety are different in actions of claim and delivery to those in cases of arrest, but the right to except is the same. The qualifications of the sureties are required to be the same, and their allowance is governed by the same rules. I think there should be no distinction as to the effect of an exception not waived within the time allowed for justification between the cases mentioned.

The party having the right to do so declares in the form prescribed that he will not accept the surety offered, and should be bound by his election. This is a natural and just view of the act of excepting. The surety feels that, having been rejected, he is no longer bound and may not look for his indemnity to his principal, which he might otherwise do. And this feeling is one prompted by common sense, and should be the expression of the common law. But if this view be incorrect, it seems to me that there can be no doubt that the judicial determination that the surety was insufficient and the substitution of other bail operates as an exoneration.

In Van Dyne agt. Coope, Justice Cowen says “it is not necessary to say what effect the complete substitution of new bail may have in replevin as a consequence of the exception,” but I think it has such an effect as stated. The 'substituted surety is necessarily a result of the judicial act, and he assumes the obligations which his predecessor was declared unqualified to discharge. He may be regarded in other words as having taken his place on the record by order of the court. For these reasons I think the judgment of the court below should be reversed.

Daly, F. J.

I concur upon the ground that there was a substitution of new bail, after exception; and a failure to justify.  