Beers vs. Pinney & Green, 12 Wend. 309

By the Court, Sutherland, J. The declaration avers that the plaintiff gave immediate notice to the defendants of the commencement of the suit against him, upon his recognizance by Johnson, and of the nature and pendency thereof and the proceedings therein. After such notice, they were bound to defend the suit; and whether they did or did not, the recovery is conclusive against them. 1 Johns. R. 517. 6 id. 158. 7 id. 168. 4 Cowen, 340. The defendants were not prejudiced by the surrender of Pinney to the Herkimer county jail by the plaintiff, whether that surrender operated as a discharge of the bail or not.

If it was a good surrender, the defendants should have set it up as a defence to the suit; if it was not, then it did not prevent the defendants from making an effectual surrender. They were in no respect injured by the act; after notice they were the real parties to the suit, and were bound to conduct the de-fence. The pleas are therefore bad, and the plaintiff must have judgment on the demurrer. Judgment for plaintiff.