
    HAYES a. CARRINGTON.
    
      New York Superior Court;
    
    
      Special Term, May, 1861.
    Exoneration of Bail.—Effect of Death of Principal.
    Bail, who have been sued, on their liability as such, are exonerated if their principal dies before the lapse of eight days after the expiration of the twenty days fixed by the summons in the action against them. The provision of 2 Rev. Stat., 383, § 34,—allowing exoneration on the death of the principal, within eight days after return of process,—is not repealed by. the Code; and the expiration of the time to answer or to appear, is to be deemed the time of the return of the process.
    
      It teems, that the last clause of section 191 of the Code,—allowing bail to be exonerated within twenty days after action brought, or within such further time as may be allowed by the court,—is to be construed as qualifying each of the former clauses of that section, so that the court may grant further time to exonerate, in the case of death, imprisonment, or discharge of the principal, as well as in case of his surrender.
    
      Motion to exonerate bail.
    On the 16th of August, 1858, an action was commenced in this court against O. H. Berryman, and an order of arrest was obtained against him. The action was for an assault and battery.
    Upon that arrest the present defendants, Carrington and Kirby, entered into an undertaking together with Berryman, dated August 25, 1858, engaging that Berryman should at all times render himself amenable to the process of the court during the pendency of the action. On the 6th of October, 1860, judgment was recovered against Berryman in the sum of $1,729.15. On the 9th of October, 1860, execution was issued against his property, and returned unsatisfied. On -the 12th of December, execution against the person was issued, and returned not found. On the 25th of March the present suit was commenced by service of summons on Kirby, and on the 9th of April upon Carrington. It appears that the defendant in the original suit died at Pensacola, not earlier than the 2d, nor later than the 6th of April, 1861. On the 9th of April, 1861, an order was obtained on the application of the defendants for the present plaintiff to show cause why they should not be exonerated from their liability as bail upon the undertaking, and why the action should not be discontinued. This motion was made under section 191 of the Code.
   Hoffman, J.

—Two differing constructions of this section are contended for by the respective counsel. It may be that the twenty days on the extended time allowed by an order applies only to the cases of a surrender; it may also be that it is referable to each case for exoneration enumerated in the section. It will first be necessary, in obtaining a true interpretation, to ascertain how the law stood before the Code.

In England, the death, at any stage of a suit before the return of the capias ad satisfaciendum against the principal, gave the right to an exoneration; but the court refused to relieve the bail when the death took place after the return-day of the ca. sa., though it was not actually returned.

In Olcott a. Lilly (4 Johns., 407), the court said, “ There was no case in which the death of the principal, after the return of the ca. sa., had heen allowed as a ground of relief. All the cases agree that after the bail is fixed, de jure, they take the risk of the death of the principal. The' time which is allowed the bail, ex gratia, is at their peril.

In Davison a. Taylor (12 Wheat., 604), Chief-Justice Marshall says: “ Courts allow bail to surrender their principal within a limited time after the return of the ca. sa. against them, as a matter of favor, and not as a matter pleadable in bar.” But the rule has never been applied to cases where the principal dies after the return. In such a case, bail is considered fixed by the return of the ca. sa. (against the principal), and his death does not afterwards entitle the bail to an exoneration.

By the Revised Statutes of 1830 (2 Rev. Stat., 383, § 34), it was provided, that where the defendant in a suit should die after the return of the execution against his body, and before the expiration of eight days from the return of the process served on his bail, the court shall relieve such bail on the same terms .as if they had surrendered their principal at the time of his death. The rules of practice in the other cases, such as discharge on a bankrupt or non-imprisonment act, may be gathered from White a. Blake (22 Wend., 612; Stever a. Somberger, 19 Wend., 121). White a. Blake is very instructive. The defendant had become special bail for a non-resident debtor. In January, 1839, judgment was recovered against the principal. In June following a ca. sa. was returned non est. In December, 1839, the plaintiff commenced an action against the bail, who obtained an order enlarging the time for surrender until May, 1840. Before the time expired, an act placing non-residents on a footing with residents as to imprisonment for debt, was passed. (Laws of 1840, 220.) On the 6th of May, 1840, judgment was perfected against the bail, and in June, 1840, a motion was made for exoneration. The motion was granted.

The power to extend the time to surrender under the Code is fully recognized, and I should think that a legal discharge within the extended time is as available now as it was before the Code.

One reading of section 191 of the Code is this. The bail may be exonerated—first, by the death of the defendant within twenty days after the commencement of the action against such bail, or within such further time as may be granted by the court for the' surrender of the principal. Or second, by the imprisonment of the principal within a state-prison within the same period, Or third, by the legal discharge of the principal from the obligation to render himself amenable to the process against him within the same period. Or fourth, by a surrender of the principal to the sheriff of the county where he was arrested in execution of the process, within the same period. This reading requires us to interpolate, as applicable to the case of death in the clause respecting further time, a clause such as I have above italicized.

The counsel for the plaintiff pointedly observed that there could not be an extension, by the court, of the time to die or to get a discharge. The extension was, to do an act, within the further time, which the bail was to have done before.

The other reading requires us to construe the section thus:

The bail may be exonerated—first, by the'death of the defendant, within such time as, under the existing law, the bail is entitled in that event to a discharge. Or second, by the imprisonment of the defendant in a state-prison, within a similar period. Or third, by his legal discharge from his obligation, within a similar period. Or fourth, by a surrender within twenty days from the commencement of the action against such bail, or within such further time as may be granted by the court to make a surrender.

I am of opinion that the first reading of the section can be sustained. It is not necessarily at variance with the grammatical sense of the section. It seems to me to give a comprehensive and precise rule for every case. But suppose this view is wrong, and in the case of death, the period at which the bail is fixed is governed by the former law. By force of the sections 468, 469, and 471, the provision of the Revised Statutes which I have quoted would furnish the rule, unless it is inconsistent with the Code, or is not in substance applicable to actions under it. (§ 471.) The statute referred to has fixed eight days after the return of. the process against the bail for the limit of the time within which the death of the principal shall work a discharge. There is no longer a return of process in the sense in which it was then understood, but there is its equivalent, in the time allowed to answer the complaint after service of a summons, which is 20 days, or, where a complaint is not served, in the 20 days allowed for an appearance. The defendant has that time to put himself into court, to surrender or defend. It therefore seems to me that the defendants are entitled to the order for their discharge.

Order accordingly.  