Von Gerhard a Lighte.

Walscheid. The defence set up that judgment was rendered in favor of Walscheid by default, and that, though the default was opened, and judgment finally rendered against him, he had meanwhile left the State. Also, that the plaintiff had, by a writing not under seal, made in Prussia, agreed with Walscheid, in consideration of the payment of $500, to discharge him from the judgment, which amounted to $2,260. These facts were proved, but the referee held that they constituted no defence, and gave judgment for the plaintiff for $1,741. The defendants appealed.

Philip F. Smith, for the appellants.

C. A. May, for the respondent.-I. The interlocutory judg ment, dismissing the complaint in the original action wherein Walscheid was the defendant, was not such a judgment as would discharge the bail from liability. 1. The judgment was entered without notice, costs being waived, so that plaintiff had no knowledge of the dismissal in writing. 2. The liability of the bail is, that "the defendant shall at all times render himself amenable to the process of said court during the pending of this action." The action could not cease to pend until the right to appeal or move in the cause was lost. There was no notice of the entry of judgment served on plaintiff. 3. The defendant Walscheid appeared again in the original action, and opposed the motion to open the default and set aside the judgment, thus recognizing the "pending" of the action. 4. The only mode to discharge the bail, was to move for their exoneration. (Gregory a. Levy, 7 How. Pr., 37.)

II. The parol release or receipt as set forth in the answer, and as proved before the referee, was insufficient to discharge a debt of record, to wit, the judgment recovered against Walscheid as

There is no allegation, in the papers submitted on the part of the defendant, that the bail were exonerated, and the plaintiff denies any written notice of the surrender. The defendant's case not being within the statute, the plaintiff was not bound to issue an execution against the defendant's person. The object in requiring an application for the exoneretur is to advise the plaintiff of the surrender, that he may protect his rights, and in order that, the defendant's imprisonment being known, he may have the benefit of the statute under which this motion is made.

The application must, for these reasons, be denied, but without costs, and with liberty to the defendant to renew the motion on further facts, if so advised.

Von Gerhard a. Lighte.

alleged in the complaint. 1. A debt of record can only be discharged as required by statute or by release by deed. (Harrison a. Close, 2 Johns., 449, 450; Jackson a. Stackhouse, 1 Cow., 122.) After breach of the covenant of the bond, defendants could only be discharged by release, by deed expressly referring to the judgment. (Crawford a. Millspaugh, 13 Johns., 87.) 2. The payment of a less sum than the judgment (as in the present case) is not an actual satisfaction, unless expressly received as such by deed. (9 b., 333; 13 Ib., 353.) Accord and satisfaction will not discharge a specialty or a debt of record. (Mitchell a. Hawley, 4 Den., 414.)

BY THE COURT.-BRADY, J.-The undertaking of the defendants was, that their principal, William Walscheid, should at all times render himself amenable to the process of this court during the pending of the action brought against him by the plaintiff'; and Walscheid not having rendered himself amenable to such process, they became liable upon their undertaking. The judg ment rendered against the plaintiff by default did not terminate the action per se, because this court had the power to vacate the judgment and to allow the action to proceed, and exercised that power upon the application of the plaintiff. When the authority thus possessed was exercised, the action was renewed or continued, and was pending with like effect, as if no judgment had been recovered. If the defendants desired to avail themselves of that incident of the litigation, they should have applied to be exonerated from further liability. There was no other mode, save by surrender of their principal, in which they could, upon such a circumstance, relieve themselves of their obligation. The Code (section 191) declares by what events the bail may be discharged. The only one applicable to this case is the legal discharge of the principal from the obligation to render himself amenable to the process that may be issued against him. Such a discharge has not been obtained in this case. The power of the court over the litigation and parties must be exhausted, and the principal must be successful in the action by final judgment, before the liability of the bail ceases. Until those features attend the proceedings, the principal cannot be legally discharged from the obligation to render himself amenable to the process of the court.

Nelson a. Nixon.

This being the case, the judgment obtained against the plaintiff was of no avail.

The agreement made in Berlin, to release the defendant Walscheid upon the payment of $500, was without consideration, and, being an agreement to accept less than the judgment, was void. (2 Parsons on Contracts, 130, and cases cited; Dederick a. Leman, 9 Johns., 333; see also Crawford a. Nulspaugh, 13 Ib., 87.)

It was not valid as a defence to the defendants. There was no stipulation or agreement not to proceed in the cause or upon the judgment contained in that paper, and even if there had been there was no consideration for such a promise, and it would not be binding.

But it is sufficient, to dispose of this appeal, that the agreement to accept the $500 was not binding upon the plaintiff. An agreement founded upon a valid consideration extending indulgence to the principal, or changing the situation of the bail, and increasing their risk, would exonerate them. (Rathbone a. Warren, 10 Johns., 597; Huffman a. Hulbert, 13 Wend., 378.)

In this case the agreement was without consideration, and made abroad-out of the jurisdiction of this court. It did not change the relations of the principal and the bail, and did not increase their risk.

The judgment should be affirmed.

NELSON a. NIXON.

New York Common Pleas; General Term, July, 1861.

ACTIONS BY AGENTS.

An agent may sue upon a contract made with him as such, and for the fulfilment of which he is personally bound, without any assignment from his principals. So held, where the principals were minors.

Appeal from a judgment of the First District Court.

Nelson a. Nixon.

The plaintiff had entered into a contract under seal with the defendant, in which the plaintiff described himself as agent for his sisters, and covenanted that his sisters should perform at the defendant's theatre; for which services the defendant agreed to pay them $100 per week. The complaint set forth this covenant (which it stated to be made with the sisters), a breach, and an assignment, by the sisters, of their cause of action to the plaintiff. The sisters were minors. On the trial, the defendant moved to dismiss the complaint, on the ground that the contract proved was with the plaintiff, and not with the sisters, as alleged; and further, that the sisters, being minors, could not assign their claim. The motion was denied, and judgment being rendered for the plaintiff, the defendant appealed. Some objections were raised on appeal that had no foundation in fact, according to the return of the justice.

A. A. Phillips, for the appellant.-I. The sisters Nelson were infants, and could not assign their claim.

II. The contract was not made with them, and therefore the complaint should have been dismissed.

H. H. Morange, for the respondent.

BY THE COURT.*-DALY, F. J.-No assignment was necessary to enable the plaintiff to maintain this action. He had the right to sue upon the contract in his own name. Though he describes himself in the contract as the agent of his sisters, he bound himself personally for the performance of it. He signed the contract, and covenanted that his sisters, and he, as their director, would faithfully, diligently, and to the best of their skill and ability, his sisters by acting, and he by directing their acting, do and perform their part in the contract. His sisters being minors, could not enter into any obligation that would be binding upon them; and there was therefore a good reason why the plaintiff should become personally bound, as well for the fulfilment on his part as upon theirs of what was agreed upon. When a party, though acting as the agent of another, binds himself personally for the fulfilment of a contract, he may sue or be sued upon it. It is one of the cases in which an agent

* Present, DALY, F. J., BRADY and HILTON, JJ.

Myers a. Gerrits.

may enforce the contract by a suit in his own name (Story on Agency); and it is also a rule that persons, though contracting as agents, are liable where there is no responsible principal to resort to (Paley on Agency, 374), which was the case here. The contract was not signed by the plaintiff's sisters, and if it had been, and they had become formally parties to it, it could not have been enforced against them. It was signed by the plaintiff alone, and was an undertaking, on his part, both for him and them. The defendant's remedy for the non-fulfilment of it would have been against the plaintiff. He could have maintained no action against the sisters; and such being the fact, it can be treated only as a contract between the plaintiff and the defendant, which the plaintiff had a right to enforce by an action in his own name.

The return of the justice shows that the question put as to the age of one of the sisters was not excluded; it was put and answered. Nor does it appear by the return that the justice. allowed testimony to be given by the plaintiff after both parties had rested; and if he had, it was a matter entirely in his discretion, which could not be reviewed upon appeal. The judgment should be affirmed.

MYERS a. GERRITS.

New York Common Pleas; General Term, July, 1861.

VERIFICATION BY AGENT.

In an action upon an instrument for the payment of money only, the possession of the instrument is enough, under section 157 of the Code, to authorize ar agent or attorney of the plaintiff to verify the complaint.

When, in an action upon two promissory notes, the verification of the complaint was made by a person other than the plaintiff, and it stated that the notes were in the possession of the deponent, and that the reason why the verification was not made by the plaintiff was his absence from the State; and the defendant disclosed no defence,-Held, a sufficient averment that the deponent was the agent of the plaintiff, to put defendant to proof of the contrary.