#### Lewis S. Levy, plaintiff and respondent, *vs.*Anastasius Nicholas, who was impleaded with Thomas Stacy *et al.*defendant and appellant.

Special bail fixed as such can not, in an action against them, as such, show either in bar of the action, or in mitigation of damages, that they were, before the recovery of judgment against their principal, and at all times since, have been utterly insolvent, and had no property whatever that could, or was liable to be applied towards the payment of such judgment.

(Before Bosworth, Ch. J., and Robertson and Barbour, JJ.)

Heard December 27, 1862;

decided April 6, 1863.

This was an appeal from an order sustaining a demurrer to part of an answer, and directing judgment for the plaintiff • thereupon.

The action was brought upon an undertaking of bail, given by the defendants, Thomas Stacy and Anastasius Nichols, upon the arrest of one Edwin B. L’Amoureux, upon an order of arrest granted in a civil action against him under the Code of Procedure. , ,

The undertaking was in the usual form,

The complaint alleged, besides the arrest and execution of the undertaking, in the sum of $2000, that the plaintiff recovered judgment in the former action against L’Amoureux, and after execution against property issued and returned unsatisfied, had issued execution against the person, which was returned “Not found 5” and that the condition of the undertaking had been broken. Judgment was therefore demanded for the sum of $1300.08, the amount of the judgment against L’Amoureux.

*615. The defendant, ¡Nicholas, answered, denying various allegations of the complaint, and set up either as a second and distinct defense as to the claim of the plaintiff in this action, or as to the principal or some part thereof, or in mitigation of the damages (if any) to be recovered in this action, that before and at the time of the recovery of the judgment specified in the complaint, and also before and at the respective times of the issuing and return of the two executions specified in the complaint, and of each of them respectively, R. L’Amoureux was, and ever since has been, and still is, utterly insolvent, and had no property whatever that could, or ought to be, or was liable to be applied to, or towards the payment or satisfaction of such judgment or any part thereof.

To this second defense in the answer the plaintiff demurred. The demurrer was argued at special term, in October, 1862, before Mr. Justice- Babboub, by whom it was sustained. And judgment was thereupon given for the plaintiff.

The defendant now appealed.

*S.*Whitehorne, for the defendant, appellant.

*S. B. H. Judah,*for the plaintiff, respondent,

cited *Petersdorff on Bail,*351; *Code,*§§187,291; 2 *Chit. Pl.*177; 1 *id.*104, 105; *Gilbert on Debt,*395 ; *McCreery*v. *Willett,*(23 *How. Pr.*129 ;) *Renick*v. *Orser,*(4 *Bosw.*384;) 2 *R. S. 3d ed.*479, §§ 34-36.

By the Court, Bosworth, Ch. J.

The only question presented by this appeal is whether special bail who have become fixed can, in an action against them as such bail, show either in bar of the action, or in mitigation of' damages, that before the recoveiy of judgment against their principal, he was, and at all times since, has been utterly insolvent, and had no property whatever that could,. or was liable to be applied towards the payment of such judgment.

That fact is not one of those which the Revised Statutes (2 *R. S.*383, §§ 33, 34,) provides may be placed or presented as a ground for relieving bail.

*616■ Oil .a breach of the bail bond given on the arrest of a" defendaht, conditioned for his appearance, and putting in bail, such bail, are liable for the aniount of the debt or demand against the principal; the costs of the original suit and of the • suit, on the bond (to the extent of the penalty of such bond.) (2 *R. S.*349, §§ 11, 12. *Id.*358, § 12.) And special bail who" have .¡become fixed, and are liable as such,, can only be relieved by- paying the judgment against their principal, (that not being larger than the sum in which they undertook as bail,) and the costs of the action against themselves. *(Graham’s Pr.*pp. 426, 427. *Blaney*v. Holt, *and Same*v. *Hardell,*3 *Nev. .& Mann.*529. *See Stever*v. Sornberger, 24 *Wend.*275; *Gregory*v. Levy, 12 *Barb.*610; *Code,*§§ 199, [174,] *and*200, [175.]

. Such .was . clearly the "measure of the liability of special bail; .and" the character and extent of the relief to which a plaintiff, on such a State of facts, was entitled before the Code.

Section 468 of the Code, declares- that all rights of action given or secured by existing laws may .be prosecuted in the manner provided by this act.” "

Rights given or liabilities created and defined by existing laws,, are not modified, impaired or diminished by - the general provisions" of the. Code prescribing the procedure to .be conformed to in civil actions.

The order should be affirmed.

Robertson, J.

The- undertaking of the defendants was that the -debtor in, the former suit" (L’Amoureux,) should at all times render himself amenable to the process- of the court, during the. pendency of the action, and to such as might- be issued to -enforce the judgment therein. They have at all times authority, to produce the person of the debtor in then-exoneration, and, the plaintiff in such action was entitled to insist on the production of the body or payment of the debt. They were,not public officers, upon whom the execution of process may, devolve even against his will, but volunteers, such as are most usually friends of the party arrested. The order *617of arrest would be of little avail to procure the payment of a debt, if the sureties for his appearance could refrain from producing his body, and speculate on their ability to prove his insolvency, when the most important witness, himself, might be absent. Eor an accidental inability to produce the body of the debtor at the time, the court may furnish relief. *(Barker*v. *Russell,*11 *Barb.*303.) But if negligent or indifferent in attempting to produce it, the law implies either indemnity or fraud, and makes the sureties liable. Bail may also be substituted for the actual deposit of the amount for which the defendant is ordered to give bail, which amount would, if given, be applied immediately to satisfying the judgment. *(Code,*§§ 199,200.) The change of security ought not to alter the plaintiff’s rights. Besides this, the plaintiff is bound to test the solvency of the debtor, by executions against his property, and the facility of procuring his person as a pledge by an execution against it, (2 *B. S.*382, §§ 29, 30,) and any fraud or collusion in mere pretended efforts by such executions, to collect the amount due, deprives him of the right to proceed against the bail. *(Id.*383, § 31.)

The Oode of Procedure reenacts the cases for exonerating bail, originally provided for in the Revised Statutes, as amended by a statute passed in 1845. (2 *R. S.*382, § 22. *Sess. L. of*1845, *ch.*231, § 3. *Code,*§ 191.) One of them is the legal discharge of the debtor, not from the debt, but from the obligation of rendering himself amenable to process, showing that the plaintiff was to have the money or the defendant’s body, if amenable to process as security for the debt. The same principle is laid down in elementary works.

I therefore concur in affirming the order appealed from.

Order affirmed, with costs.