Louis v. Mitchell

2 Hill & Den. 379

• Court: New York Supreme Court
• Decided: January 15, 1842
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

The settled practice of this court is to require each of the bail to justify in double the amount ordered. In Cromelines ads. Beldens, (1 Wend. 107,) this practice was departed from, but the case was made an exception to the general rule .on account of the magnitude of the demand; and the learned judge who delivered the opinion of the court expressly repudiated the intention of making it a precedent in ordinary cases. Perhaps the rule of the K. B. in England, which requires a justification to the extent of only 1000l. more than the debt sworn to when that amounts to 1000l., is the most reasonable one; (1 Arch. Prac. 86;) but we have not adopted it.

There is certainly more reason for requiring a justification in double the sum ordered, where it has been fixed by the officer, than in a case where the amount is taken from, the writ, which usually states the indebtedness at double the sum really claimed. I think the justification should be set aside and taken anew before the recorder; but as the error was made by the latter, no costs are allowed.

Ordered accordingly.