Tappen v. Van Wagenen

Van Ness, J.

delivered the opinion of the court. It would be highly unjust for the plaintiff to recover. The defendant could not be made liable upon his recognisance, until the plaintiff had obtained judgment against the defendant in the original suit. It is true, that such a judgment was once obtained ; but after the reversal, it was as if it had never existed. It would be absurd, therefore, that the plaintiff should be allowed to recover against the bail, when there is in fact nothing due to him from the principal ; yet that is contended for in the present suit. The consideration of the note was the judgment against the principal. That judgment is no longer in existence, and thus the consideration of the note, has wholly failed. The defendant here engaged to pay this note under a persuasion, that his principal was bound by the judgment. In this he was mistaken. The principal is not bound, and the bail must consequently be discharged. (Taswell v. Stone, 4 Burr. 2454.) If the defendant had paid this judgment after the reversal, he might have recovered the money back. If a suit had been brought on the recognisance, the court, pending the writ of error, -would have stayed the proceedings until the writ of error had been disposed of. If there had even been a judgment in the suit upon the recognisance, and the original judgment had been reversed, the bail would be relieved on an audita querela. (Dr. Drury's case, 8 Rep. 142. Sir John Applesby and Key v. Ive, Cro. Jam. 645. Jenkin's Rep. 319.pl. 21. Sir John Applesby's case. Green v. Legus, 2 Roll. Rep. 254.)

The Court are, therefore, of opinion, that the defendant is entitled to judgment.

Judgment for the defendant.