
    *Ransom, late sheriff of Niagara, against Keyes and Landon.
    UTICA,
    August, 1828,
    The recital of a ca. sa. in a bond for the Fao1 proof of it, in the brad  , Though the bond recite that the ca. sa,
    
    issued on a judgment in debt, and the judgment in truth was in an action of assumpsit; held, that the variance was immaterial, the nature' of the action being so, and its recital merely surplusage; and so it might be rejected.
    . A third person, liable to contribute to a defendant towards the amount of the plaintiff’s recovery, is not a competent witness for the defendant; but the defendant may release him, and thus make him competent.
    A release to one, liable to contribute to the recovery- against-a defendant must, in order to make him a competent witness-for the defendant, be directly from the defendant himself to whom the witness is liable. It is not sufficient that it be from his co-defendant, who is surety for the defendant for the demand in question; for the witness is not hable to an action, at the suit of the surety. There is no privity between them.
    Thus, where the action'was on a limit bond, against oné of two defendants, and the surety of the one, for his escape from the ca. sa.-issued orí a judgment against him and his partner, held, that his co-defendant, the partner, was not releasable by the surety in the bond from liability to contribute to the principal in the bond.
    Where judgment is against two joint debtors, and the surety of one of them in a limit bond is compelled to pay the debt, on the ground of an escape of the one, this is equivalent to a direct payment by the principal: and the co-debtor is liable to contribute to him (the principal) immediately. At any rate, the principal, on refunding the money to his surety, will he entitled to contribution from Ms co-debtor.
    Where one of two joint debtors causes the debt to be paid by a surety on a bond given by the surety, this is equivalent to direct payment by the debtor; and he may sue Ms co-debtor for money paid for him. At any late, he may do this after he has refunded to his surety.
    A discharge of one of two joint debtors under the insolvent act,-before payment by his co-debtor, will not affect the claim of the bo-debtor for contribution against the discharged debtor, towards the payment of the debt by the other, made subsequent to the insolvent assignment.
    The arrest of a debtor on-a ca. sa., and subsequent discharge from the arrest by consent of the creditor, extinguishes the judgment.
    So the arrest on a ca. sa., and discharge of one of several joint, debtors, by consent of the creditor, discharges and extinguishes the judgment as to all the debtors.
    Thus, where one of two joint judgment debtors Was arrested on a ca. sa., and gave bond for the limits, and escaped; and the sheriff was sued for the escape, and then the other debt- or was arrested on an alias ca. sa. and on paying part, was discharged by consent of one of the creditors, pending the-escape suit; AeM that tire whole judgment was extinguished; that tMs formed a valid defence to - the action for the escape, wMch the sheriff should have . pleaded, (the discharge being itt season for his doing this;) and his neglect to defend on this ground was in his own wrong; alid, though he had suffered a recovery and paid the money in the action for the escape, he could not collect the amount paid by Mm upon tho limit bond of the defendant who had escaped.
    Where a sheriff, sued for an escape, waives a defence known to him, he acts at Ms peril; and, though the parties to the limit bond have notice of the suit, they are not liable.
    Debt on bond; given by the defendants to the plaintiff as ° i. r , . sheriff of the comity of Niagara, (now the county of Erie,) tried at the Erie circuit, before Birdsall, C. Judge, on the 7th day of September, 1826.
    The declaration contained one count only, setting forth a bond, dated October, 23d, 1816; given by the defendants ’ ’ ’ ’ ° J
    
    
      to *the plaintiff, in the penalty of $824, with a condition that Chancey Keyes, (one. of the defendants) who was in custody of the plaintiff as sheriff, by virtue of a ca. sa. issued out of the supreme court, at the suit of Eli Hart and John Lay, junior, should remain a true and faithful prisoner, and should not at any time or in any wise escape, or go without the limits of the liberties of the gaol of the county as then established, or at any time afterwards be established,-until discharged by due course of law. The declaration then averred,.that the bond and condition were taken pursuant to the statute in such case made and provided, and set forth a breach of the condition by the escape of Keyes on the same day in which the bond was given.
    The defendants separately put in the plea of nil debet, and the defendant Keyes, under his plea, gave notice, that after he was arrested, Henry C. Bronson, (who was a coj defendant in the original judgment with Keyes,) was arrested on a ca. sa. on the same judgment by the plaintiff in this suit as sheriff; and that John Lay, junior, one of the plaintiffs in the original action, with the knowledge of the plaintiff, agreed that if Bronson would pay to him (Lay) $122, he, Bronson, should be discharged, and that Bronson did pay the $122, and that Lay did then discharge Bronson from the ca. sa.; and that Bronson, with the assent of Lay and Ransom, did go at large.
    The defendant, Landon, gave notice under his plea, that after the arrest of Keyes, and after giving the bond, Bronson was arrested by the plaintiff, as sheriff, by a ca. sa. issued on the judgment; and while Bronson was in custody, he arranged and satisfied the judgment with the plaintiff, who voluntarily permitted him to escape and go at large. The notice further set forth, that after the giving of the bond, and after Keyes escaped, a ca. sa. was issued at Landon’s instance and request, and for his indemnity, directed and delivered to the plaintiff, as sheriff, upon which Bronson was arrested by the plaintiff, who afterwards voluntarily suffered and permitted him to escape. The notice then set forth, that after the arrest of Keyes, and after the giving of the bond, after the escape of Keyes, the plaintiff paid Hart and Lay the amount of the judgment which was transferred to the plaintiff, and- afterwards a ca. sa. was issued to the plaintiff, on which he arrested Bronson," and that then Bronson paid and satisfied the plaintiff the amount of the judgment, whereupon, the plaintiff suffered Bronson to go at large.
    Landon then pleaded, that after the giving of the bond, and after Keyes escaped, viz. on the 26th of January, 1821, he was discharged under the act to abolish imprisonment for debt in certain cases. The memorandum in the nisi prius record was of August term, 1825.
    On the trial, the plaintiff called on Moses Baker as a witness, who proved the execution of the bond by the defendants, and the arrest of Keyes ;• and that he frequently saw Keyes at Batavia, in Genesee county, since the arrest, and before the year 1825.
    The defendant’s counsel objected to the reading of the bond in evidence, until the execution on which the arrest was made should be produced. The court overruled the objection, and the bond was read in evidence, by which it appeared that the ca. sa. on which Keyes was arrested, as recited therein, was issued on a judgment in an action of debt.
    John Root, Esq.
    was then sworn for the plaintiff, and testified that this suit was brought in March, 1825, and that it was the understanding between Keyes and Landon, the defendants, when Keyes gave bail for the limits, that Keyes was to go immediately home to Batavia, where he then resided; that the suit against Ransom for the escape was brought shortly after, and he presumed, and had no doubt, that Landon knew the fact; for he had frequent conversations with Landon in relation to it, about that time ; and that he knew of the escape of Keyes.
    Albert H. Tracy, Esq.
    was then sworn on the part of the plaintiff, and testified that he recovered a judgment as attorney for Hart and Lay against Keyes and Bronson, in August term, 1816, of this court, for $412 Ti„ and on the 20th of October, 1816, issued a ca. sa. thereon to Baker, a deputy sheriff under Ransom,, the same on which Keyes was taker and upon which taking the escape complained of was made. Ori: the 26th of October, 1816, he entered . , . , _ . _ ■ ’ m his1 register a *suit against Ransom for the escape of Keyed, and on the 4th of November following issued a capias, and Ori the 18th handed the same to Fillmore, á coroner of the county, returnable at the January term following, and in May term, 1817, judgment was obtained by default" against Ransom for the escape of Keyes, for $466 36 debt, damages and'costs. The witness paid the amount to Hart and Lay in March, 1818. Ih November, 1819 Ransom paid the amount tb the witness, though it was understood between them- before. That on the 14th of January, 1817, an alias ca. sa. waS issued against Bronson, on which he was taken: Bronson then paid $122 on the judgment." Bronson and the sheriff then left the witness office. The Witness also" stated thftt a ca.- sa. against Bronson was not issued at the instance of Hart and Lay ;• but whether at the instance of Landon of Ransoms the witness did not recollect; That he kriew'nothing of any arrangement, and would take no responsibility upon- himself by giving any directions about it, because he considered Ransom holden for the judgment by means of Keyes’ escape,, and intended to hold him liable ; and that the reason- why the amount was not paid sooner by Ransom was, that Ransom- had-a large account against the witness for sheriff’s fees, and that shortly after Ransom became fixed, it Was agreed that the amount of the judgment should be applied ori the sheriff’s bill ;• but an actual settlement did not take place till November, 1819". That the action against Keyes and Bronson was assumpsit on a promissory note, and he had no doubt the ca. sa. was issued aS iti assumpsit. The plaintiff here rested.
    The defendant’s counsel theft moved for a nonsuit,’ oh the-following grounds :- 1. That the ca. sa. on which Keyes Was arrested ought to be produced. 2".- That the testimony of Mr. Tracy showed that the ca-. sa. Was' in ássüffipsit, and the bond recited a ca. sa. in a plea of debt.- 3. That the-testimony showed that Bronson hád been discharged from thé ca. sa. by the consent Of Lay, Which enured to- the1 benefit of Keyes and his bail.
    
      The court overruled the motion, and reserved the points. The defendants then called Bronson, who was sworn, and *was about to testify, when the plaintiff objected to his testifying, on the ground of interest; that the testimony he was called to give, would go to defeat the plaintiff’s recovery, if he testified to any thing; that if the plaintiff recovered any thing against Keyes and Landon, Bronson would be responsible to Keyes for one half the recovery, as it was proved the judgment against Keyes and Bronson was obtained on a note given by them as joint partners in trade.
    The defendant’s counsel then, to avoid his interest, offered to show that Bronson had been discharged under the act for giving relief in cases of insolvency, passed April 12th, 1813, commonly called “ the two third actbut the court rejected the witness as interested.
    The counsel for the defendants also offered a release from Landon to the witness, contending that as the parties had pleaded separately, a release from Landon would render the witness competent to testify in his defence. The defendant’s counsel likewise offered to prove by Bronson, that after he was arrested as above testified, he paid $122 upon the sa. ca. and arranged the balance with Ransom, by promising to pay Ransom the balance; and that upon this arrangement, he was discharged from the arrest by Ransom and Lay. The court still refused the witness as interested.
    John Lay, junior,
    was then sworn as a witness on the part of the defendants, and testified that Bronson was arrested, as he.understood ; thinks that Bronson and Ransom called on him at Tracy’s office, or at his store, and he also understood that Bronson paid $122 and was discharged ; but he left the business with Mr. Tracy as his attorney, to manage as he thought best: that he, the witness, made no specific arrangement with Ransom for the discharge of Bronson, though it was understood between the witness, Ransom and Bronson, that upon Bronson’s paying $122, Ransom might discharge him ; but it was not to affect Ransom’s liability to Hart and Lay, for the escape of Keyes. Bronson accordingly paid to Mr. Tracy $122, and was then discharged from the arrest as the witness understood.
    The evidence here closed, and-a verdict was taken, by consent for the "plaintiff, for $824 debt, and damages assessed* on the breaches to $572x¿„, subject to the opinion of the supreme court" on a case. If the court should be of opinion that there was sufficient evidence of a variance between the ca. sa. and bond, and if such variance did exist, that it was material, then a nonsuit should be entered ; but if, on the other grounds, they were against the plaintiff, then a judgment should be entered for the defendants, or a new trial should be granted; and that either party, on the argument, should be at liberty to refer to and produce the pleadings in the cause.
    
      S. Sherwood, for the" plaintiff, insisted on the following points:
    1. There was no necessity of producing the ca. sa. on which Keyes was arrested. The recital in the bond was conclusive.
    2. Landon having notice of the pendency of the suit against the plaintiff, for the escape of Keyes, is chargeable with all the consequences of that suit.
    • 3. The arrest and discharge of Bronson, after the escape of Keyes, and .a suit brought for that escape, did not discharge that action. (Powers v. Wilson, 7 Cowen, 276.) This did not discharge the bond. It was not an arrangement.to discharge a joint obligor. A technical release to such an one would discharge a bond; and this is the farthest that courts have gone. (McLean v. Whiting, 8 John. 339. Dewy v. Derby, 20 John. 462.)
    4. There is.no evidence that.the plaintiff assented to the discharge of Bronson; nor is there sufficient evidence that Bronson was discharged at all.
    5. Bronson was properly rejected as a witness. By swearing down the plaintiff, he could relieve himself from contribution to Keyes, as a co-debtor, to whom he would be liable, notwithstanding his insolvent discharge. (Andrus v. Waring, 20 John. 161. Buel v. Gordon, 6 id. 126. Frost 
      v, Carter, 1 John. Cas. 78.) Landon could not release so as to make Bronson competent. Landon had nothing to release. The liability was to Keyes, who did not offer to release.
    6. It is not competent for the bail to object that there "was a variance between the recital of the bond and ca, sa. if any ^existed. (Jones v. Cook, 1 Cowen, 309.) Besides, the recital was no necessary part of the deed. You may strike it out and yet the bond stands good. (Jackson v. Streeter, 5 Cowen, 530, and the cases there cited by Sutherland, J. Tallmadge v. Richmond, 9 John. 90.)
    
      J. Mc Kown, contra, insisted on the following points :
    
    1. The plaintiff should have produced the ca, sa. on which the limit bond was taken. The bond depends on the statute; and the sheriff must show his authority to take it, which are the judgment and execution.
    
      2. The variance between the ca, sa. proved and the ca. sa. stated in the bond, is fatal.
    3. Bronson should have been admitted as a witness. Keyes left the limits by Landon’s consent. The act of Keyes could not at all affect his co-defendant; and a release from him (K.) was unnecessary. His escape was a tort, for which Bronson was not bound to contribute. Beside, Bronson had long since been discharged under the insolvent act. Again, Landon offered to release the witness. He had pleaded separately; and a release would make the witness competent as to Landon.
    4. The discharge of Bronson from custody by Ransom, with the consent of the plaintiff in the original suit, released the other defendants, and their bail to the sheriff. It was a material alteration of the security (Rathbone v. Warren, 10 John. 587.)
    
      Sherwood,
    
    in reply, said the discharge of Bronson from custody made no change in the rights of the sheriff. They were perfect on Keyes’ escape before the discharge of Bronson, and continued the same afterwards. The arrest and discharge of Bronson was beneficial to Keyes and Landon; for the payment by- the former diminished the amount due-, from the'latter.
    
      
       See Cowen & Hill’s notes to Phil. Ev. 381; 2 id 455
    
   Curia, per Woodworth, J.

This was an action of debt on a. bond, conditioned that Keyes, who. had been arrested on a ca..sa. should, remain, a faithful prisoner.

*It appeared that a judgment was obtained in August term, 181.6,. in.favor of Hart.& Lay, against Keyes-& Bronson,, for $412. The judgment was in assumpsit. In the vacation following, .a .ca. sa, issued, on -which Keyes was arrested, and shortly after escaped. -In November, .1816, a suit was commenced against the plaintiff (the sheriff) for the escape;. and judgment recovered in «May term,. 1817. The amount of . this .recovery, Albert H. Tracy, attorney for .Hart & .Lay, paid, to them in March, 1818; and in November, 1819, the plaintiff paid the amount to- Tracy.

On the 14th of January, 1817, an alias ca. sa. issued against: Bronson, on which he was arrested, and paid $122. Bronson and the sheriff then left Tracy.’s office. .

The bond executed by- the defendants recited that the ca.. sa. issued in an-action of debt.

It also.appeared in evidence, that when the defendants executed the bond, it was the understanding between them that Keyes was. to go home immediately.

• The defendant, moved for a nonsuit.

1. Because the ca. sa.. on which Keyes was arrested, was not.produced.

2. Because Tracy testified that the ca. sa. was in assump ■ .sit, and the bond recited a ca. sa. in debt.

3. Because Bronson had been discharged from the alias ca. sa. by the consent of Lay.

As to the first objection; the bond admitted the ca. sa. and the plaintiff was not obliged to produce it.

As to the second; the bond is not fully set out in the case. The recital.is, that the ca. sa. issuéd on a-judgment in an action of debt. The ca. sa. was correct; the,defendant was arrested on it. The mistake is merely in this : that the sheriff inserted debt- in the place of assumpsit. -The variance is not material) because the bond would have Been valid, had the description of the action been entirely omitted. It would have been sufficient to say, that the defendant has been arrested by virtue of a ca. sa. issued on a judgment, stating the amount of that judgment. It is not even suggested that the amount .of the judgment was not truly inserted in the ca. sa. *It follows, therefore,- that' the description of the action was surplusage;, an'd according tó the established rule, surplusage consisting, of immaterial matter, never vitiates.

As to the third objectiori, there had no evidence been given, in that stage of the cause, that Bronson had been dis charged.

The court properly overruled the motion for a nonsuit.

The defendant then called Bronson, the co-defendant with Keyes. He was sworn, and about, to testify, when the plaintiff objected, on the ground of interest, urging, that if he testified to any thing, it.would goto defeat the.plaintiff’s recoyery; .and that if the plaintiff recovered .against Keyes and Landon, Bronson would be answerable to Keyes for one half of the recovery, it appearing that the judgment against Keyes and'Bronson was obtained on a note given by them as joint partners. The defendants, to avoid this objection, offered to show that Bronson had been discharged under the insolvent act of 1813 ; and also offered a release from Landon to, the witness, contending that, as the defendants had pleaded separately,, such a, release would render the witness competent to testify in his (L.’s) defence. The evidence proposed to be given by Bronson was, that after he was arrested,, he paid.8122 on the ca. sa. and arranged the balance, with the now plaintiff, and was, therefore, discharged from the arrest by the plaintiff and Lay.

It seems to me, the witness had a direct interest to defeat the recovery. He was equally liable for the debt. If the plaintiff recovered in this cause, such recovery, with a consequent payment, would extinguish all further claim arising in consequence of the judgment of Hart and Lay against Keyes and Bronson. Admitting that, after this recovery, Landon should pay the whole to the plaintiff, Keyes would be liable to Landon for the money paid. On his payment, a °f action would accrue against Bronson for one half But without this, a payment by Landon must be considered as a payment made by Keyes’ procurement; for it would ^e made on a bond which Keyes had prevailed on Landon to execute for his benefit and enlargement. I do not perceive any material difference, therefore, whether Landon had advanced *the money for KeyeS when he ivas arrested, or subsequently paid it, in consequence of a recovery on the bond he had given. As between him and Keyes and Bronson, it was enough that the former had paid, or caused to be paid; nor could Bronson defeat a recovery against himself, because satisfaction was made in the latter way.

The claim of Bronson would arise, if at all, subsequent to the discharge under the insolvent act, and, therefore, cannot be affected by it.

As to the release of Landon ; this does not remove the objection. There is no privity between Landon and Bronson. That is between the former and Keyes; nor do I know on what ground Landon could maintain an action for money paid, against Bronson, to him (Landon) a stranger. Keyes might have his remedy over against Bronson, which Landon could not control. I think the judge correctly excluded the witness,

The defendant then called Lay as a witness. He testified, that he understood that Bronson was discharged on the alias ca. sa.; that he left the business with Tracy, his attorney, to manage as he thought best; that the witness (Lay) made no specific arrangement with Ransom, the sheriff, for the discharge of Bronson. He thought it was understood between him and the sheriff, that upon Bronson’s paying 122 dollars, the sheriff might discharge him; but it was not to affect the sheriff’s liability to Hart and Lay, for the escape of Keyes.

From this evidence, I think it is to be inferred that the sheriff did discharge Bronson with the consent of Lay •; and it presents an important question upon the legal effect of the discharge.

It appears that the escape of Keyes was in the August Vacation of this - court, 1816, and on the 18th day of November, of the same year, Hart and Lay commenced an action for the escape against the sheriff. While that suit was pending, (January 14th, 1817,) the alias' ca. sa. was issued against Bronson, on which he was taken, and then paid the 132 dollars, and was discharged. -The case does not state the day on which this arrangement took place but it was evidently *shortly after the ca. sa. issued and previous to May term, 1817, when the judgment was obtained against the now plaintiff. The probability is, it was shortly after January 14th, 1817, and undoubtedly in sufficient season to have enabled the sheriff to avail himself of the legal effect of the discharge as a defence to the action commenced against him for the escape. He did not interpose any defence, but voluntarily paid the recovery against him, in 1819, in pursuance of an arrangement so to do long previous. Tracy paid Hart and Lay their judgment in March, 1818. This he undoubtedly did in consequence of the sheriff having, shortly after the escape of Keyes, agreed that the judgment should be applied on the sheriff’s bill against Tracy, for fees, which was afterwards done.

There can be no difference of opinion as to the justice of this case. Keyes and Bronson have never paid any thing beyond the 122 dollars ; and the sheriff has satisfied the judgment against them. The rules of law, however, are 'inflexible, and cannot bend to the hardship of a particular case. If, in judgment of law, the discharge of Bronson by the consent of Lay, satisfied and extinguished the judgment, then the now plaintiff acted at his peril, in waiving the defence which it Was competent for him to make ; and subsequently, in his own wrong, malting payment.

The law applicable to this point was considered in Lathrop v. Briggs, (8 Cowen, 171,) where the cases are collected. A discharge of the debtor from arrest on execution, by the creditor’s consent, extinguishes the judgment. (2 Mod. 136. 1 T. R 557. 4 Burr. 2482. 7 T. R. 420. 5 John. 364. 16 id. 181. 2 East, 243.) These author!* ties proceeded on the ground that the plaintiff received a satisfaction in law, by having his debtor in execution That this principle is applicable to a case where there are several defendants, and one is taken and discharged, was decided in Clark v. Clement & English, (6 T. R. 525,) where it was held, that if a plaintiff consents to discharge one of several defendants taken on a joint ca. sa. he cannot afterwards retake him, or any of the others. In that case, after one of the defendants had been taken and discharged on certain terms, a second ca. sa. was *issued, on which he was again arrested. The motion was to show cause why he should not be discharged, and satisfaction entered on the roll. After argument, the rule Was made absolute.

If the doctrine, then", is well settled, that where there is but one defendant, his discharge after arrest on a ca. sa. by the plaintiff, operates as a satisfaction of the judgment, it seems to follow, that where there are several defendants, all are discharged. Upon what principle is it, that after the discharge of one, you can not arrest the other ? It must be, that the judgment was no longer in force; for if it is, execution follows of course. If, then, Keyes had not been arrested when Bronson was discharged, on the authority of the case cited, to which I subscribe, Keyes could not have been legally arrested. But he had been previously arrested, and escaped. Will this produce a different result ? I do not perceive any well founded distinction ; for if the judgment is to be considered as legally satisfied, Hart and Lay have no cause of action against the sheriff for an escape; and consequently, the sheriff could not have recovered the amount of the judgment on the bond. The defendants would have been protected against a recovery, unless, perhaps, for nominal damages.

This case does not depend on the doctrine that the principal shall do no act to injure the surety; but on the ground that Lay, by his act, discharged the judgment'; and if so, the foundation upon which damages are claimed falls to the ground. While I have no hesitation in saying the defence is unjust, inasmuch as if the preceding view be correct, the defendants,-in a court of law, get’rid'of a large judgment without the actual payment of more than a small portion, I have ntit been able to arrive át a conclusion in favor of their liability. Judgment must be entered for'the

defendant.

Judgment for the defendant. 
      
       The old rules relative to the exclusion oí witnesses, on the ground o$ interest, are abolished by § 398, 399, N. Y. Code. See also Washington Bank v. Palmer, 2 Sanf. S. C. R. 686. Mesick v. Mesick, 7 Barb. 120.
     
      
      
        Quere, the effect of article second, § 25 to 29, "of Revised Statutes, 4th ed. 167, 8, as to the above doctrine? See also Bank of Poughkeepsie v. Ibbotson, 5 Hill, 461. Hoffman v. Dunlop, 1 Barb. S. C. Rep. 185.
     