Thomas Ketland, surviving partner of J. Ketland, against Medford surviving partner of Willis

Thomas Ketland, surviving partner of J. Ketland, against Medford surviving partner of Willis. Saturday, December 31st. Where the bail has paid the debt due by his principal, and the latter has paid nbthing, the court will not, at the instance of the. principal, and against the wish of the bail, order an exoneretur upon the bail, piece before the principal has been taken. A FOREIGN attachment at the suit of the plaintiff was laid upon the effects of the defendant in the hands of John Lisle, returnable to March 1801. In April following, Lisle, who was the agent of Medford for receiving and paying the debts of Medford and Willis, and had been previously directed by Medford to stand suit, entered special bail, and dissolved the attachment. He afterwards consented to a reference; upon which 3,302 dolls. 23 cts. were awarded to the plaintiff, and the award confirmed. By an article between Ketland and Lisle, a few days prior to the reference, the former agreed to accept from the latter 12s. 6d. in the pound, of the sum that should be awarded, as a full discharge of Lisle from his liability for the debt as bail; Medford being at that time in England, and his bail unable to surrender him. And a short time after the award, Lisle paid the 12s. 6d.; and at his instance Ketland assigned the judgment to Preston and Smithfield. Whether Lisle paid the money with the funds of Medford,, did not appear; he claimed to be a large creditor of Medford; and upon the latter coming to America, Lisle took out a bail-piece, with a view to take him. Ketland declared himself satisfied, and that he had no claim against Medford. Ingersoll, for the defendant, moved to enter an exoneretur upon the bail-piece; and upon the above facts appearing in evidence, he contended, that, as Lisle had acted as the agent of Medford in paying the money, he had no right to surrender him, because he had taken the step for the accommodation and safety of his principal, and not to secure a power to himself. And in the next place, that the money being paid, and the bail discharged from all liability, he had no right to surrender him, because the right to surrrender was a mere defensive right, and founded exclusively upon the responsibility of the bail. That in fact Lisle was no longer bail; the recognisance was extinct; the condition of it was, that if the defendant should be condemned in the action, he should satisfy the costs and condemnation, or render himself to the custody of the sheriff, or the bail should pay the costs and condemnation for him. Here bail had paid the costs and condemnation, and therefore the recognisance was at an end by performance. Levy and Tilghman for the bail. It is well known that bail are the most favoured of all sureties; and, as it is said in 6 Mod. 231., they have their principal always upon a string, and may pull him in whenever they please. This is an application by the principal to pull the bail out of the bail-piece; it is of the first impression; and in this summary way, before the bail is taken, and where facts are disputed, should not be listened to. The only ground upon which it can be supported, is, that the principal has paid the debt himself, or the bail has paid it out of his funds. The first is not pretended; and the latter we deny. He paid it out of his own funds, as any third person might; and the plaintiff became a trustee of the judgment for his use. It was accordingly assigned at his instance to Preston and Smithfeld. Bail may certainly buy the judgment; and if he does, there is no ground for depriving him of any of his remedies. [C. J. Tilghman. The question is not whether he may buy the judgment; but what has become of the recognisance.] If he had paid under the recognisance, as in debt or scire facias upon it, there might be some ground for the opposite argument; but here he has paid it, as a stranger might, without action, and with an intention, at the time, to use the judgment, by directing an assignment of it. Indeed it is questionable whether the court has any power to grant the motion against the consent of the bail, who is no party on the record; but surely as the application is to the equitable jurisdiction of the court, as it is said in Martin v. O'Hara, and the bail has paid all, and the principal nothing, they will not interfere to prevent his getting the money back. Parole in reply. It is true that bail hold their principal upon a string; but here the bail has cut the string, and wishes to get hold of it again. He has terminated the recognisance by payment; not payment as a stranger, but payment as bail; for the article of agreement recites that he was unable to surrender his principal; and the compromise was in full discharge of his liability. We do not come then to the equitable jurisdiction of tbe court; for the recognisance is, gone. It is not as if it were in force, and the bail applied for a discharge; but it is as if an execution had issued upon a judgment that had been paid. Lisle however has no equity; he made the agreement without the privity of Medford; and after having discharged the recognisance, he wishes to set it up. If he can do it now, he may at any distance of time, and may constitute himself the gaoler of Medford whenever he pleases. Cowp. 824 [MAJORITY — Tilghman C. J.] Tilghman C. J. delivered the judgment of the court. This is a motion on the part of the defendant to have an exoneretur entered on the bail-piece; the bail not joining in the motion, but opposing it. The court have no doubt of their authority to enter an ex-onere.tur, if a clear case was made out But the counsel of the defendant have shewn no precedent going the length they ask. Without entering into a detail of the facts, this case presents two striking features: one that the bail has paid a large sum on account of the defendant; the other that the defendant has not paid one farthing. Nor has he yet been taken by the bail. In this situation the court think it would be wrong to interfere in this summary manner. If hereafter the defendant should be taken by the bail, and it shall be made to appear that the bail-piece is used for oppressive and unjust purposes, it will be in the power of the court to grant relief. The court are of opinion that the motion be rejected. Motion denied.