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Hyatt v. Robinson and others

Dec. Term

In Bank not liable — the writ, of course, being held to be absolutely

9:void. See, also, ex parte Haynes, 18 Wendell, 611; Brown 1846.

v. Hutchinson, 9 Johns. Rep. 75; Grummon v. Raymond et al., 1. Conn. Rep. 40; Parmelee v. Hitchcock, 12 Wendell, 97; Earl v. Camp, 16 Ibid. 562; Ames v. Webber, 8 Ibid. 545; 'Vosebergh v. Welch, 11 Johns. Rep. 175; · Curry v. Pringle, Ibid. 444; Luddington.v. Peck, 2.Conn. Rep. 700; Gold v. Bissell, 1 Wendell, 210; Rogers v. Mullenor, 6 Ibid. 597; Savacool v. Boughton, 5 Ibid. 170. .

The case of Norton v. Danvers, 7 Dunf. & East. 371, decided by the Court of King's Bench, is an 'adjudication, that a

writ issued against the prohibition of a statute is absolutely · void. , ' . By the statute of 37 Geo. III., chap. 45, for restraining, for a limited time, payment of cash, by the Bank of England, it is enacted that no person shall be holden to bail, unless the affidavit made for that purpose, contain not only every thing required, by the act of Geo. I., chap. 29, but also state, " that (no offer has been made to pay the sum of money sworn to, in

notes of the bank.” A capias ad respondendum was issued against the defendant, upon an affidavit, not containing the statement required by this statute. The defendant, however, was never arrested under the writ; but, upon being informed that the writ had been taken out against him, voluntarily gave a bail bond. Lord Kenyon, C. J.: “If the defendant had been ? actually under arrest at the time, his consent to give a bail 6. bond would not have been binding on him, because it might be considered as given under duress; but here, he voluntarily gave the bail bond, and on that ground only my opinion is • founded.”. • The case of Aikins y. Richardson, 15 Verm. Rep. 500, is a case, in principle, perfectly analagous to the one now before the Court. It was a scire facias against the defendant, as bail, for one Ithiel Richardson, on two writs of attachment. The defendant pleaded that the original actions were founded on contracts, made and entered into, after the first day of January,

Hyatt v. Robinson and others.

1839; and that the plaintiff did not, at the time of praying out In Bank.

Dec. Term, his writs of attachment, file with the authority issuing the writ, an affidavit stating that he had good reason to believe that the said Ithiel S. Richardson was about to abscond from the State, and had secreted about his person, or elsewhere, money or other property. Replication, that the plaintiff did file such affidavit, concluding to the country. . . On the trial, the plaintiff offered in evidence an affidavit, made by him, and filed with the justice who issued the writ — of which affidavit, the part relied on by the plaintiff as sustain ing the issue, is as follows: “That, in my belief, Ithiel s. * Richardson, now in Chester, in said county of Windsor, rep(resented as late resident of Albany, in the State of New York,

is about to leave this State ; and that, from the best informa'tion I'have, I verily believe he has money secreted about his person, and is also possessed of goods, wares and merchan

dise, as of his own property;" &ć. To the admission of this affidavit the defendant objected, and the same was rejected by the Court. There being no other testimony, the jury, by the direction of the Court, returned a verdict for defendant.

After verdict, the plaintiff moved the Court to render judgment for him, non obstante veredicto; which motion was overruled, and judgment rendered by the Court for the defendant. To both rulings of the Court, the rejection of the affidavit, and the refusal to render judgment non obstante veredicto, the plaintiff excepted...

But the ruling of the Court was sustained, and judgment again rendered for the defendant. . In the case of Smith v. Scott, in error, in the Supreme Court for Athens county, at the November 'term, 1844, before Judges Wood and Birchard, it was decided that a' ca. 'sa. issued without affidavit, “and other testimony," was absolutely void. 2 West. Law Journal, 405..!

The fifth and eighth pleas of the sureties must, therefore, be sustained.

Hyatt v. Robinson and others.

In Bank. Fourth: Assuming, then, that a writ, issued against the exDec. Term, 1846. ? press prohibition of the statute, is void, it follows that the sixth

plea, setting up that the ca. sa. did not recite or show any order made by the court, or any Judge, upon affidavit and other testimony authorizing the issuing of the writ, must be sustained; for it is a general rule, that a writ of execution, to support itself, must show that state of things which authorizes its issuing. Hence, when a ca. sa. went out, as of course, all that it was necessary to recite in the writ, was the recovery of the judgment. That recital, however, was essential.' Without it, the writ was void on its face. Now, since something more than a judgment recovered is required before the writ can issue, it must show a compliance with all these additional requisitions, or it is void on its face. These prerequisites are now made, by law, just as essential to the validity of the writ as the recovery of the judgment itself. The one can no more be dispensed with than the other.

The case of Carter v. Drake, 10 Wend. Rep., 619, referred to by the plaintiff's counsel, has no application to the case now before the Court. It was not a writ.issued under the statute. It was a capias ad respondendum — not final process; and the suit being an action on the case for seduction, there was an application, according to the English and New York practice, wholly independent of the non-imprisonment act, for an order to hold the defendant to bail on mesne process. That it was not an application, under the statute, is clear; for the statute does not require a Judge's order to hold to bail, on a capias ad respondendum. It issues upon affidavit alone. But, even in that case, hear what the Court say.— Savage, C. J.: “It is • usual and proper to indorse the order to hold to bail on the

capias, but it is not indispensable that it should be so indorsed. • It may be in a separate paper, and provided the authority • exists, and is in possession of the officer or under his con

trol, the defendant is properly held to bail, whether it be indorsed on the writ or not.”

Hyatt v. Robinson and others.

1846.

A writ of capias ad satisfaciendum, therefore, not reciting In Bank.

Dec. Term, the proper order founded upon the affidavit and other testimony, as required by the statute, being void, the sixth plea is sustained.

Fifth: The seventh plea of the sureties and the third plea of the principal, set up, that the principal was imprisoned by the plaintiff, until, by the force and duress of imprisonment, he and his sureties made and delivered the writing set forth in the declaration.

The duress of the principal, avoiding the bond, as to him, also avoids it as to his sureties, whose liability is not in chief, but incidental only, arising out of and dependent upon that of their principal. Without a liability of principal, there cannot, ex vi termini, be a liability of surety.

- ' We are aware there are contradictory decisions on this point, but the reason why it has ever been held, that the surety could · not, under such circumstances, avail himself of the duress of his principal in discharge of the bond, was, that it imported a consideration, and he was estopped from averring a want of consideration. But, in Ohio, this reason no longer exists, and the defence may, therefore, well be made.

And so, too, in the other States, the rigid rules of the common law, on the subject of consideration, are giving way, and hence the recent and better American authorities permit the surety to set up the dyress of the principal. The ease of Fisher v. Shattuck et al., 17 Pick. Rep. 252, is directly in point. It was an action of debt on a bond given by the defendants — the one as principal, the other as surety — upon the complaint of the plaintiff, made under the bastardy act. The defendants pleaded :. 1. Non est factum. 2. Duress of the principal ; to which the plaintiff replied, and the defendants demurred generally. The demurrer to the replication raised the question, as to the sufficiency of the plea of duress. The counsel claimed, that the duress of the principal did not discharge the surety, and referred the Court to the case of Huscombe v. Standing, Croke Jac., and to Bacon's Abrig., the same au

Hyatt v. Robinson and others.

Dec.

1846.

In Bank. thorities relied upon by the plaintiff's counsel, in the case now

" before the Court.' Shaw, C. J., delivering the opinion of the Court, says, (p. 253,) that, “ upon consideration, the opinion

of the Court is, that the plea of duress is a good bar for both defendants." And again, (p. 254,) “ The order requiring the * party to give bond, was void; the order to hold the defend« ant in custody until he gave bond, was erroneous and void, and, therefore, the bond was given under duress.”

Só, also, the case of Whitefield v. Long fellow et al., 13 Maine Rep. 146, was an action of debt, on a bond, executed

by Longfellow as principal, and the other defendants as sure· ties, conditioned to pay the lying-in charges, &c., under the bastardy act. The general issue was pleaded and joined, and a brief statement, (a substitute, under the statute of Maine, for a special plea,) was filed, alledging that the bond was obtained from Longfellow by duress of imprisonment and threats of the same. The Judge, who tried the case, having refused to instruct the jury, as asked for by the defendant, and there being a verdict for the plaintiff, the defendant excepted. Weston, C. J., says, (p. 150,) that if Longfellow “ did not execute the

bond in suit freely, but, through fear of unlawful imprisoniment, he acted under the influence of such moral compulsion

as constitutes duress.” The exceptions were sustained and a new trial awarded, that the question, whether Longfellow did act freely.or under fear of unlawful imprisonment, might be distinctly presented to a jury. for determination... i · The case of Commonwealth v. Canada, i3 Pick. Rep. 86, was a scire facias against bail in a recognizance, alledging a forfeiture, by reason of the avoidance of the principal. The recognizance having been illegally taken, was, by the Court, held void, and judgment rendered for the defendant, the surety.

In the case of The United States v. Tingly, 5. Peter's Rep. 115, the Supreme Court of the United States, where an official bond, variant from that prescribed by law, was extorted, by the Secretary of the Navy, as a condition of a purser's remaining

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