Daniels v. . Patterson , 3 N.Y. 47 ( 1849 )

The motion for a nonsuit was properly over ruled. Where Mann resided, and how the suit was, or should have been commenced, were matters which did not belong to the issue to be tried by the jury. If the suit was not regularly commenced, the remedy was by motion, or plea in abatement.

But I see no reason to doubt that the proceedings were regular, although the suit was commenced in the common pleas by filing a declaration and serving it on Stickney and Patterson, without serving it on Mann, who was not a resident of the county, and did not appear. The act of 1844 provides, that actions in the common pleas "may be commenced by service of a declaration, in all cases in which such actions may now be commenced by capias." (Stat. 1844, p. 215, § 5.) And clearly suits might then be commenced in the common pleas by capias against several joint debtors, although one of them resided out of the county, and was not served with process.

The principal question in the case, is upon an offer of evidence by the defendants, which was rejected by the court. Whether the facts offered to be proved would discharge the sureties, may depend on how the offer is understood. The point of it was, that the replevin suit was, by the agreement of the parties or their attorneys, "put over and delayed, from time to time for several years," without the knowledge or consent of the sureties. There was no offer, in terms, to show that there had been unnecessary or unreasonable delay — more delay than sometimes happens in other cases; nor more than the court of common pleas would have approved, had the matter been brought to its notice. Nor does the offer state under what circumstances the delay happened, so that we can see that it was unnecessary or unreasonable. Delay "for several years," is not necessarily improper; whether improper or not depends on the obstacles which the parties found in prosecuting and defending the suit. A cause may very properly be "put over and delayed," in consequence of the absence or sickness of witnesses; the non-return, or mistaken return of a commission; the sickness of a party, or his counsel; and the like. Such difficulties may happen, and lead to delay, "from time to time," and "for several years," without the fault of either party. If the delays were such as the court would have allowed on the application of one party against the other — and there was no offer to prove the contrary — it is of no consequence that they were had "by agreement and stipulation by and between the parties, or their attorneys." It is quite proper for the parties and their attorneys to arrange such matters by consent, in the way they would probably be disposed of by the court upon motion. We all know that offers of evidence are usually made in as broad and strong terms as the facts will warrant; and as the defendants, neither offered, in terms, to show that there had been improper delay, nor stated facts from which the court can see that such must have been the case, I am unable to say that the common pleas erred in rejecting the evidence. Before a party excepts on account of the rejection of evidence, he should make the offer in such plain and unequivocal terms as to leave no room for debate about what was intended. If he fail to do so, and leave the offer fairly open to two constructions, he has no right to insist, in a court of review, upon that construction which is most favorable to himself, unless it appear that it was so understood by the court which rejected the evidence. And if the meaning of the offer depends upon argument and inference, he must have much the best of the argument, before a court of review should reverse the judgment.

But the case may be put upon still broader ground. The condition of the bond was, that Mann would prosecute the replevin suit to effect, and without delay; and that if Daniels should recover judgment against him, he would return the property, if return thereof should be adjudged, and would pay Daniels allsuch sums of money as he might recover in the action. The breach assigned is, that Daniels recovered judgment in the action for a large sum of money, which has not been paid. Now, let it be granted that Mann delayed for years, and without necessity, to prosecute the suit, and that Daniels consented to the delay; the only consequence would be that Daniels could not have an action on the bond for the want of prosecution. He could not complain of that which took place with his consent. If the delay had been without his approval, he might have had an action on the bond for that cause alone, and although the replevin suit was still pending. (Axford v. Perrett, 4 Bing. 586; Harrison v. Wardle, 5 B. Ad. 146.) But although the consent has precluded Daniels from having such an action, it can have no effect upon the breach which he has assigned, to wit, the non-payment of the sum of money which he recovered against Mann in the replevin suit. Mere delay of the creditor to sue, however long it may continue, never discharges the surety, unless it be after a request from the surety to proceed. And Daniels was under no obligation to hasten Mann in the prosecution of his suit, unless the sureties requested him to do so; and that is not pretended. Daniels might consent to a postponement from term to term, and without any special reason for so doing, providing he did nothing to prevent Mann from going on with the suit whenever he pleased, and made no agreement which would preclude him from quickening the proceedings of Mann, should the sureties request him to do so. In this view of the case, the offer falls far short of making out a defence.

The cases to which we have been referred do not support the defence. In Moor v. Bowmaker, (6 Taunt. 379, and 7 id. 97,) the sureties twice failed at law; but afterwards had relief on the equity side of the court of exchequer, (Bowmaker v.Moor, 3 Price, 214,) on the ground that there had been an agreement between the parties to the replevin suit by which the plaintiff in that suit was "precluded from proceeding according to the condition" of the bond — an agreement staying the proceedings, "so that the tenant [plaintiff] is restrained, by the act of the landlord, [defendant,] from doing that which his surety has engaged he shall do." The case of Archer v. Hale, (4 Bing. 464,) went upon substantially the same ground. And seeAldridge v. Harper, (10 id. 118.) There was no offer in this case to prove an agreement between the parties to the replevin suit, by which Mann was "precluded from proceeding according to the condition" of the bond; or "from doing that which his sureties have agreed, he shall do." Every thing contained in the offer might have been proved, without showing that there had been a moment's delay, except at the request of Mann; or that Daniels ever did any thing more than consent to such delay as Mann desired to have. In short, Daniels did not compel Mann to prosecute his suit "without delay;" but allowed the proceedings to linger for "several years." That is no answer to an action on the bond for the non-payment of the sum which Daniels recovered in the replevin suit.

The other cases to which we were referred are not enough like the one at bar to call for a remark.

I am of opinion that the judgment of the supreme court should be reversed, and that of the common pleas should be affirmed.

Ordered accordingly.