Morris Canal & Banking Co. v. Vannatta

17 N.J.L. 159

• Court: Supreme Court of New Jersey
• Decided: May 15, 1839
• Status: Published

Opinion

Hoknexowek, C. J.

Bail must be put in, according to the statute, if the plaintiff requires it. It was decided in Marcellis vs. The President and Directors of the Hamburgh Turnpike Co., (Penn. R. 948.) that bail must be filed in all cases, whether the defendant has been held to bail below or not; and in Craig vs. Berry, (South. R. 852) this Court refused to retain the cause here, without bail, although the plaintiff desired to do so, and offered to waive the bail. Since that, however, we have adopted a more reasonable rule. Considering the writ of Habeas Corpus a common law writ, and that bail was not necessary to give this Court jurisdiction of the cause, but, only required by the statute, for the benefit and security of the plaintiff, it was decided in Dickinson adsm. The State Bank at Morris (1 Harr: R. 354), and may now be considered as the settled rule, that the plaintiff at his election, may enter a waiver of bail, and proceed with the cause in this Court; or move for a procedendo for want of bail.

In this case, the plaintiff insists upon bail; and it can make no difference that the defendants are a corporation. It is true, a corporation cannot be arrested, nor can it be surrendered by bail, but the recognizance required by the statute, is an absolute undertaking, and cannot be discharged by surrendering the defendant.

Ford, White, and Dayton, Justices, concurred.

Nky.ojs, Justice, absent.

Motion denied.