Foster v. Rainsford

New York Supreme Court

Foster v. Rainsford

1 Hill & Den. 323

DecidedMay 15, 1841

StatusPublished

This text of 1 Hill & Den. 323 (Foster v. Rainsford) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foster v. Rainsford, 1 Hill & Den. 323 (N.Y. Super. Ct. 1841).

Pincite

Opinion

By the Court, Cowen, J.

The replication is bad. The condition of the bond was, that Slingerland • should appear by putting in special bail, &c. and the plea is, that he did so appear. This is a literal compliance with the condition. It is no answer to say that he was an infant and did not appear by guardian. The condition of the bond has no [324]*324relation to the kind of agent by which Slingerland was to appear. The object was simply to secure the payment of the judgment to be recovered, so far as special bail may operate as a security. Surely the plaintiff would not have been content with his appearing by guardian. That would not have answered the bond; nor is there any need of a bond to compel such an appearance. Another remedy is given by the statute, which the plaintiff might have resorted to. (2 R. S. 364,2d ed. § 10, 11, 12.) The court has always had rules by which they would protect the plaintiff against the consequences of an infant appearing by attorney; but a bail bond has never been understood to respect that. It has always been used merely to compel the putting in of special bail.

Judgment for defendant.

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By the Court, Cowen, J.

The replication is bad. The condition of the bond was, that Slingerland • should appear by putting in special bail, &c. and the plea is, that he did so appear. This is a literal compliance with the condition. It is no answer to say that he was an infant and did not appear by guardian. The condition of the bond has no [324]*324relation to the kind of agent by which Slingerland was to appear. The object was simply to secure the payment of the judgment to be recovered, so far as special bail may operate as a security. Surely the plaintiff would not have been content with his appearing by guardian. That would not have answered the bond; nor is there any need of a bond to compel such an appearance. Another remedy is given by the statute, which the plaintiff might have resorted to. (2 R. S. 364,2d ed. § 10, 11, 12.) The court has always had rules by which they would protect the plaintiff against the consequences of an infant appearing by attorney; but a bail bond has never been understood to respect that. It has always been used merely to compel the putting in of special bail.

Judgment for defendant.

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Bluebook (online)

1 Hill & Den. 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-rainsford-nysupct-1841.