Oliver v. Howell

5 N.J.L. 581

Opinion

Southard J.

Oliver was taken upon a warrant issued by justice Vanhorn, and with Tillman, entered into a recognizance for his appearance at a future day, according to the directions of the statute. Oliver did not appear at the day, and the plaintiff, Howell, refused to proceed to try his cause, but suffered a nonsuit, and commenced this action against Oliver and Tillman on the recognizance. The summons was returned, served “ by leaving a copy with the wife of John Tillman, one of the defendants.” The judgment is against both, for 35 dollars, debt, and 5 dollars, 19 cents, costs.

Two errors appear in this record. 1. The summons was served on one only of the defendants; the judgment is against both, (a)

2. Howell ought to have tried his action against Oliver, and obtained judgment against him before ho brought suit on the recognizance. (b) By suffering a nonsuit, he precluded himself from his action against the defendant and his bail. See Bloom. 54, sec. 13.

Judgment reversed.

Footnotes

(a)

Ford vs. Munson, 1 South. 93.

(b)

Graecen vs. Allen, 2 Gr. 74. Condit vs. Baldwin, 4 Har. 143. Smalley vs. Vanorden, post 811. Cook vs Evans, 1 Har. 177. See Camman vs. Randolph, 2 Mal. 136.