
    JEWETT a. CRANE.
    
      Supreme Court, First District;
    
    
      General Term, September, 1861.
    Principal and Surety.—Undertakings.—Liability of Sureties.
    Sureties may be let in to defend on the merits in the place of their principal, in an action against him, even after a regular judgment, if it be necessary for their protection, on suitable application and excusing laches.
    Where the defendants had executed an undertaking, pursuant to section 240 of the Code, to procure the discharge of an attachment against the property of a third party, and the court had directed the third party to furnish further sureties, which he had not done, and judgment had been entered against him. by order of the court as for want of an answer,—Held, that the sureties were not discharged.
    Appeal from a judgment.
    The plaintiff in this action, in December, 1854, commenced an action in this court against one Sprague, and in that action procured, on the 13th of December, an attachment to be issued against the property of Sprague as a non-resident. To procure the discharge of that attachment, the defendants in this action executed an undertaking in the usual form, and subsequently, on the 9 th of February, 1855, Sprague put in his answer to the complaint in that action, and the plaintiff subsequently, and on the-29th of September, 1855, on an affidavit claiming that the defendant Whitman was a minor under the age of 21 years when he executed the undertaking, obtained an order striking out the [ defendant’s answer in that action, unless such defendant should within ten days furnish another undertaking-with two sufficient | sureties, who should each justify. Such undertaking not having ¡[ been filed, the plaintiff thereupon was allowed to take judgment' ¡ in that action against Sprague as for want of an answer, and now. i sought in this action to recover against the present defendants, ; on the undertaking so executed by them, the amount of that ; iudgment. ■’
    
    This cause was tried before H. W. Robinson, Esq., referee, ) who rendered judgment in favor of the plaintiff for the $1890.27. The defendants appealed to the general term. t
    
      John C. Dimmick, for the appellants.
    —I. The defendants are ) to be regarded in all respects as sureties, and entitled to all the ( rights and privileges of sureties; and the plaintiff stands in the same relation to them, and owes them the same duties, as would arise on a bond executed by them to him as obligee, with their relation .as sureties appearing expressly on the bond. (Rathbone a. Warren, 10 Johns., 587.) This relation being established, the law will not allow the creditor to deal or interfere with the principal debtor in any manner to the prejudice of the sureties!
    II. The plaintiff in a bailable action, by reason of the duty" U he owes the sureties, cannot hold the bail if he declares for a I cause of action cjifferent from that in the ae etiam clause of the \ writ. (Pell a. Grigg, 4 Cow., 426.) So, an increase of the \ damages in the declaration beyond the amount claimed in the ! writ discharges the bail. (Langley a. Adams, 40 Maine, 125.) ( These cases show that while the creditor may proceed in any \ manner the courts will allow, to obtain a judgment against the principal debtor; yet when he calls on the surety to pay the judgment so obtained, the surety is discharged if the creditor’s conduct in obtaining the judgment improperly prejudiced the , surety.
    III. The defendants in this action, having executed a proper undertaking, had a right to claim that the principal should be. allowed to be heard in his defence of the action, and have his witnesses examined and his case passed on by a jury, after the merits had been fully brought to light by witnesses; and the' act of thejplaintiff, depriving them of this right on the allegation - and claim made by him that that very undertaking was invalid, was a line of conduct improperly prejudicing the rights of the sureties, if the plaintiff is to be allowed to avail himself of the undertaking, and claim it to be a valid and subsisting one, after having obtained his judgment upon the allegation that it was invalid and worthless.
    IY. Upon principles well settled relating to estoppel, this plaintiff, having obtained his judgment solely by reason of his allegation that this undertaking was invalid, cannot now hold the advantage so obtained, and at the same time falsify the allegations by which he obtained such advantage, and obtain a second advantage by such falsification.
    Y. The plaintiff’s claim, if allowed, requires the court to change and enlarge the contract of a surety. 1. The defendants contracted to pay the judgment to be recovered,—which meant, of course, to be recovered after the defendant had a full and fair trial. 2. After obtaining such stipulation, the plaintiff says, by his conduct and order taken in the cause, because you have executed this stipulation to pay the j udgment that may be recovered, the defendant shall not be allowed to defend this action. 3. Which, if it can be carried out, is equivalent to the defendant Sprague joining in the undertaking, and inserting the following words at the end of it, viz.: “ and by reason of our executing this instrument the defendant is not to be allowed to answer, or otherwise defend said action, and the plaintiff is to take judgment for the amount demanded in his complaint.”
    YI. The plaintiff had an election upon discovering the alleged • defect, if there was one, to hold on the undertaking, or to abandon it, and take the extraordinary remedy of striking out the defendant’s answer; and having made and had the benefit of such election, he is bound by it.
    
      Ruggles & Baldwin, for the respondent.
    —I. The instrument upon which this suit is founded, is an original undertaking for all the purposes of this suit. (Leonard a. Vredenburgh, 8 Johns., 29 ; Skelton a. Brewster, Ib., 376.)
    II. But assuming the undertaking to be accessorial or collateral, there has been no unlawful act on the part of plaintiff, and therefore defendants are bound. (Clark a. Niblo, 6 Wend., 250.)
   By the Court.— Leonard, J.

—The defendants cannot object to the practice or proceedings in the action of Solomon W. Jewett a. Augustine N. Sprague.

If the judgment has been irregularly.obtained, sureties can be heard, if they apply seasonably, on motion to set it aside and let them in to defend the original action.

So, also, sureties may be let in to defend on the merits in the place of the defendant for whom they were bound, even after a regular judgment, if it were necessary for their protection, on suitable application and excusing laches.

The sheriff has been allowed to defend an action brought against a prisoner who has escaped from his custody. Bail for the appearance of a defendant have also been allowed to defend the original action for their own protection.

Such application would have been the proper remedy for these defendants to have adopted.

The condition of their undertaking is broken, and they became liable to an action, when judgment was obtained, and execution returned unsatisfied in the action against Sprague.

The answer alleges that the plaintiff, in the action against Sprague, objected to the sufficiency of the defendants as sureties; and that they were rejected, and the undertaking cancelled; and that they were discharged.

There is no evidence to sustain such an allegation or defence.

A motion to compel the defendant Sprague to furnish further sureties, on the ground that he had imposed an infant surety upon the court, was not an exception to the sufficiency of the sureties. Had he furnished further security, the former ones would then have been discharged.

The case of Pell a. Grigg (4 Cow., 426), relied on by defendant’s counsel, is not applicable here. That was a case of variance between the capias ad respondendum and the special bail-piece.

That case also was decided on motion. The regularity of the ■ practice and proceedings in another action cannot generally be litigated at nisi prius.

Judgment is affirmed, with costs. 
      
       Present, Clerke, P. J., Ingraham and Leonard, JJ.
     