The plaintiff availed himself of the undertaking executed by the defendant as surety by prosecuting it to judgment, and now seeks to maintain an action for deceit based upon the alleged falsity of the affidavit of justification. The liability upon the undertaking and for the deceit is against the same person, and it is urged that by prosecuting the former he waived his right to recover for the deceit, and that the latter cause of action is merged in the judgment.
The action is novel and unprecedented, unless the case ofWanzer v. De Baum (1 E.D. Smith, 261), in which WOODRUFF, J., intimates that such an action may be maintained, shall be regarded as a precedent. Dyer v. Tilton (23 Vt., 313), is an authority against it, and the doctrine of this case accords with the current of judicial expression. The Code provides that a party may be held to bail when he fraudulently contracted the debt for which an action is brought, and the defendant might have been held to bail in the action upon the undertaking. Instead of availing himself of this *Page 191 remedy, in the manner provided, the plaintiff seeks to accomplish the same result by an independent action. The question involved is very important, and should not be adjudged upon a special motion. The facts should be proved at the trial, and the questions presented upon exceptions. We think that there is too much doubt about the right to maintain the action to justify a preliminary order of arrest. The general rule is that a reasonably clear case must appear to authorize the order, and we think the rule applies to the question of law as presented in this case. If the plaintiff shall finally recover, he will, of course, be entitled to a body execution. For the purposes of the motion we are inclined to rule against the right to maintain the action for the reasons before stated, but the decision will not be controlling when the question is presented upon the trial. The only doubt we have entertained as to the disposition of the motion, is whether the preliminary order should remain, and the appeal be dismissed, or whether the course above indicated should be adopted. The latter being more in accordance with our impression of the legal question, it is evidently more just. Both parties can litigate the question if they desire to, without the embarrassment of having it prejudged upon a mere motion.
Orders reversed and motion granted without costs.
All concur, except RAPALLO, J., who voted for dismissal of appeal.
Ordered accordingly.