#### Winsor *versus*Farmers’ and Mechanics’ National Bank of Rochester.

1. In an action on. a bond for a stay of execution tbe surety cannot defend on a defence which might have availed in tbe suit in which the judgment was recovered.

2. ' An affidavit of defence averring a fact, not positively, but upon information and belief, without adding that the defendant expects to be able to prove it, is insufficient.

November 22d, 1875.

Before Sharswood, Mercur, Cordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas of *Crawford County,*of October and November Term, 1876, No. 148.

This was an action of debt brought March 3d, 1874, by the Farmers’ and Mechanics’ National Bank of Rochester, New York, against J. H. Winsor and J. W. Ormsby. Winsor only was served. The cause of action was on the following instrument:

“ *Know all men by these presents:*That'we, John W. Ormsby .and J. H. Winsor, of, etc., are held and firmly bound unto *305the Farmers’ and Mechanics’ National Bank, of Rochester, in the State of New York, its successors and assigns, in the sum of forty-three hundred dollars, lawful money of the United States, for which payment well and truly to be made and done, we do hereby bind ourselves, etc. Sealed with our seals, and dated the 30th day of December, A.D. 1872.

“ Whereas, judgment has been entered to No. 174, November Term, 1872, of the Crawford County Court of Common Pleas, Pennsylvania,in favor of thesaid Farmers’ and Mechanics’ National Bank of Rochester, plaintiffs, and against the said John W. Ormsby, defendant, for the sum of twenty-one hundred and thirty-one dollars and sixty-six cents and costs.

“Now, therefore, the condition of this obligation is such, that if the above bounden John W. Ormsby and J. II. Winsor, their heirs, executors, or administrators, shall pay or cause to be paid to the said Farmers’ and Mechanics’ National Bank, etc., the just and full sum of the aforesaid judgment, with interest and costs, at the expiration of the time prescribed by law as to stay of execution, then this obligation to be void, or else to be and remain in full force and virtue.

“ John W. Ormsby, [l. s.]

“ J. H. Winsor, [l. s.]”

The affidavit of defence was made by “Winsor as follows:

“. . . . The notes on which judgment was obtained in the original case in which the bond in suit for stay of execution was given, were given to the plaintiff in. the State of New York for a loan of money, and were payable in that State, and were usurious, that is to say interest was reserved and received thereon by the said bank at the rate of two per cent, per annum in excess of the rate per cent, authorized by the laws of the State of New York, and that by the laws of said State the said contract of loan was void and incapable of being enforced at. law or in equity, and incapable of ratification or being made valid or enforceable by any subsequent security for the same debt.

“ All of which facts deponent expects the defendants will be able to prove.

“Affiant further says that he is informed and believes plaintiff’ is not entitled to recover in this suit or maintain the same, for the reason that another suit, at No. 175 January Term, 1874, brought by the same plaintiff', against said J. II. Winsor for the identical cause of action sought to be recovered in this suit, is pending and undetermined, — the discontinuance entered therein by plaintiff’s attorney being ineffectual, the cost therein not having been paid.”

On the 19th of May, 1874, rule for judgment for want of a *306sufficient affidavit of defence was made absolute, and the damages were assessed at $2344.20.

The defendant took a writ of error and assigned for error, entering judgment for want of a sufficient affidavit of defence.

*Neill Neill*and *B. J.*Reid, for plaintiffs in error.

The affidavit averred that according to the laws of New York the contract of loan was void for usury, and was incapable of ratification, and a subsequent security for the same debt was therefore in the same condition.

When a party has the election of actions he cannot until discontinuance, bring another-suit of the same cause, but of a different stamp: Potts’s Appeal, 5 Barr, 500. Until the costs are paid there is no discontinuance: Summy *v.*Heistand, 15 P. F. Smith, 300; Pollock *v.*Hall, 3 Yeates, 42; Mechanics’ Bank v. Fisher, 1 Rawle, 341; Schuylkill Bank *v.*Macalister, 6 W. & S., 147.

*R.*Sherman, for defendant in error.

The plaintiff was organized under the National Banking Law, and not by the State of New York ; a loan for excessive interest does not make the contract void: First National Bank of Mt. Joy *v.*Gish, 22 P. F. Smith, 13. The defence was unavailable in any event because there was a regular judgment on the record, which was conclusive on the bail: Wilkinson’s Appeal, 15 P. F. Smith, 189 ; Bank of Northern Liberties *v.*Mumford, 2 Grant, 232; Yaple *v.*Titus, 5 Wright, 195. Nonpayment of costs will not invalidate a discontinuance, but if a second suit is brought the court, on application, will stay proceedings until the former costs are paid: 1 T.& H. Practice, part 2, 742; Cochran *v.*Perry, 4 Penn. L. J., 319; Clarke’s Ed., 521. To sustain a plea of former action the cause of action and parties must be the same: Cornelius *v.*Van Arsdallen, 3 Barr, 435.

Judgment was entered in the Supreme Court, November 26th, 1875.

Per Curiam :

This was an action of debt upon a bond for stay of execution. The affidavit of the defendant set up as a defence what might, perhaps, have been available as a defence to the original cause of action upon which the judgment was obtained, in which the defendant had become bail for stay of execution. It is not necessary to consider that question. It was clearly incompetent for the defendant to have that judgment opened, and its merits re-examined in the present proceeding. Nothing is clearer than that the bail *307for stay of execution cannot attack the judgment in which he has entered the stay. As to the point of there being another suit pending for the same cause, which had been discontinued without payment of costs, the affidavit is insufficient in form. The affiant asserts the fact not positively but on information and belief, without adding that he expects to be able to prove it. This is the more remarkable as the fact, if it existed, was a matter of record.

Judgment affirmed.