Allen v. Hunt

23 N.J.L. 376

• Court: Supreme Court of New Jersey
• Decided: June 15, 1852
• Status: Published

Opinion

Elmer, J.

It is well settled that the statute for assigning breaches does not apply to a bail bond. 2 Saund. 187 ; 2 Bos. & Pull. 446 ; 2 Green 75. And if it did, it is too late to raise this objection now. Final judgment was entered in the Circuit Court without such assignment, and this judgment has been affirmed by the superior courts. If there was error in the original judgment in this particular, that error should have been assigned and insisted on in the Supreme Court or Court of Errors. The execution conforms to the judgment, as affirmed.

The sheriff, it seems, took t'he bail bond with a penalty greater than the sum sworn to, although less than double that sum, as, it was held in the case of Ellis v. Robinson, 2 Penn. 707, he may lawfully do. The plaintiff claims now to collect, and has endorsed the execution to levy the sum actually due to him and the costs of the original action, being in amount less than the penalty of the bond, but exceeding, of course, the sum originally sworn to. This is in conformity with the settled practice. 2 Saund. 61, a ; 2 Lord Raymond 1564 ; 2 Hen. Bl. 76 ; Cowp. 71; Douglass 330.

It is according to the justice of the case. The bail have delayed the collection of the debt, and ought not to object to paying the interest that has accrued, not exceeding the penalty of the bond in which they voluntarily bound themselves. The rule to show cause must be discharged, with costs.

Potts, J., concurred.