Stratton v. Lord.

STRATTON vs. LORD.

A landlord, to obtain possession of demised premises for arrears of rent, where the premises are not actually occupied,and a declaration in ejectment cannot be served upon the lessee or his assignee, or the residence of the latter be not known so that service cannot be made there, must proceed as at common law or adopt the summary proceedings provided by statute, 2 R. S. 512, § 24 et seq. he cannot proceed by affixing a declaration in ejectment in a conspicuous place on the demised premises, and then asking the court for a rule to plead. Evans v. Moran, 12 Wendell, 180, overruled

EJECTMENT for non-payment of rent of demised premises, the lease having been assigned. The premises being wholly unoccupied, there being no dwelling house or other building thereon, and the assignee of the lessee having no place of residence known to the plaintiff, and he not being able to make personal service of the declaration, caused it to be served by affixing a copy, with the proper notice, in a conspicuous place on a post standing on the demised premises.

G. M. Spier, on an affidavit of the above facts, now moved for a special order of the court that a rule to plead be entered. He cited 2 R. S. 305, § 13, 14, 15, and id. 505, as to the recovery of dismised premises for non-payment of

rent.

By the Court, COWEN, J. The statute, 2 R. S. 303, § 1, retains the action of ejectment, declaring that it "may be brought in the cases and the manner heretofore accustomed, subject to the provisions hereinafter contained." The 14th section declares, that "if the premises claimed are not actually occupied, the declaration and notice shall be served on the defendant named therein personally, or, if he cannot be found, by leaving the same with some person of proper age at the residence of such defendant." The 15th section requires a special application for the rule to plead, where the service is made in any other manner than on the defendant personally. The statute has thus cut off all methods of ser

White v. Blake

vice in cases where the premises are not actually occupied, save those specifically mentioned in section 14. The former provision for service as between landlord and tenant not having been retained, the only remedy left to the plaintiff is an actual entry at common law, or the proceeding under 2 R. S. 512, 24, 5, 6, 7. The provisions of these sections were evidently intended to come in place of the former, 1 R. L. 441, § 23, et seq. the mode of service in which was adopted by Evans v. Moran, 12 Wendell 180. In deciding the latter case, the provisions of 2 R. S. 512, seem to have been overlooked. Looking at these in connection with the provisions of § 14, cited, we are all of opinion that the practice laid down in Evans v. Moran cannot be sustained.

Motion denied.

WHITE US. BLAKE.

June, 1840.

Special bail may apply for an exoneretur on the ground that the right to imprison the principal was abolished by an act of the legislature previous to the expiration of the time within which the principal might have been surrendered.

Bail have no right to ask for an exoneretur on the ground that the principal was not originally liable to arrest-on that ground the principal alone will be heard.

SPECIAL BAIL. The defendant became special bail for Asa F. Cockrane, a non-resident debtor in an action upon contract, at the suit of the plaintiff, brought in the New-York common pleas. In January, 1839, judgment was recovered in favor of the plaintiff. In June following a ca. sa. against the principal was returned non est. In December, 1839, the plaintiff commenced this action against the bail, who obtained an order enlarging the time to surrender until May last. Before the time expired, the act placing non-residents upon a footing with resident debtors as to imprisonment was passed, Statutes, 1840, p. 120. On the 4th of May, no surrender having been made, the plaintiff perfected judgment against the bail. A motion was now made by the bail to

White v. Blake.

set aside the judgment, and to enter an exoneretur on the bail-piece.

D. Selden opposed, and likened it to the case where the principal dies after the return of the ca. sa., and he cited Olcott v. Lilly, 4 Johns. R. 407, where it was held that after the bail are fixed, de jure, by the return of the ca. sa., they take the risk of the death of the principal. He also said, that the motion should have been made by the principal, not the bail. Stever v. Somberger, 19 Wendell, 121.

By the Court, BRONSON, J. The plaintiff's counsel is right in saying that if the principal had died after the return of the ca. sa., the bail could not have been relieved. But the case which he cites recognizes a distinction upon which we have often acted, that where the principal has been discharged under an insolvent act before the period allowed ex gratia for surrendering has expired, the bail are entitled to relief. The discharge is held equivalent to a surrender. The same rule was applied in a case where the right to imprison the principal was taken away by the legislature. Russell v. Champion, 9 Wendell, 462. There could be no use in surrendering the principal, when he would be entitled to an immediate discharge.

In Stever v. Somberger, the bail moved on the ground. that the principal was not originally liable to arrest, which was a matter for the principal-not the bail-to set up. But thebail always move where they have surrendered the principal, or where, as in this case, something has happened or been done which is equivalent to a surrender.

The bail are entitled to relief on payment of the costs of the suit against them.

Motion granted.

WALKER US. HOLMES & Launitz.

The attorney for a non-resident plaintiff may become surety for his client, on a motion by the defendant that the plaintiff file security for costs.

THE plaintiff being a non-resident, the defendants obtained an order that he file security for costs. 2 R. S. 620, tit. 2. The plaintiff's attorney became surety by executing the proper bond, and justifying pursuant to the statute. The defendants now moved for judgment of non-pros, on the ground that an attorney cannot become such surety, and likened it to the case of special bail.

W. W. Frothingham, for the defendants.

C. McVean, for the plaintiff.

By the Court, BRONSON, J. The practice on requiring security for costs has been regulated by statute, and it is enough that the plaintiff has complied with the statute by executing a bond with a sufficient surety, and the surety has justified. See Barnett v. Pardow, 10 Wendell, 615. Motion denied.

GALLAGHER VS. FLANNELLY and others.

Bail in error may be sued in the court in which the writ of error was returnable; the action is not confined to the court in which the judgment was rendered.

THE plaintiff recovered judgment against Flannely in the New York common pleas. Flannelly brought a writ of error to this court, and on that occasion he, with the two other defendants in this suit as his sureties, executed a bond to the plaintiff pursuant to the statute. 2 R. S. 595, § 26, 28. The writ of error was afterwards quashed, and the plaintiff brought this action on the bond.

Garlock v. Dunkle.

A. B. Conger, for the defendants, moved to set aside the proceedings, on the ground that the action should have been brought in the New-York common pleas.

H. H. Martin, contra.

By the Court, BRONSON, J. In action upon bail bonds and recognizances of bail, the courts grant relief upon terms, and as each court has its own rules of practice, such actions should, in general, be brought in the court where the original suit was prosecuted. Matthews v. Cook, 13 Wendell, 33. But this in an action on an error bond, and if there has been a breach of the condition, I am not aware that this, or any other court can grant equitable relief, as is done in suits on bail bonds and recognizances of bail. There is no reason, therefore, for restricting the action to the court in which the proceeding originated.

Motion denied.

GARLOCK US. DUNKLE.

It is no answer to a motion to change the venue, that by the granting of it the plaintiff will lose a trial or a term, where the defendant is not chargeable with laches and even where he is so chargeable, his neglect must be such as to produce the delay, or the motion will be granted. Where the suit is commenced by the service of a declaration, at so late a day that regular notice of trial cannot be given for the next circuit in the county where the venue is laid, the defendant is not bound forthwith to serve notice of motion to change the venue, so as to give the plaintiff an opportunity to consent to the proposed change and to require the acceptance of short notice of trial; but if, in consequence of the omission of the defendant to give notice of his motion where there is time to give regular notice of trial, the circuit will be lost both in the county where the venue is laid and in the county to which it is proposed to be changed, the motion will not be granted.

MOTION to change venue. The venue was laid in Jefferson county. The declaration was served on the seventh day of May. On the twenty-seventh day of May the defendant pleaded and gave notice of motion to change the