Robbins v. Bonnel

16 N.J.L. 234

• Court: Supreme Court of New Jersey
• Decided: November 15, 1837
• Status: Published

Opinion

By the Court.

The Court of Common Pleas, no doubt, dismissed the appeal in this case, in consequence of what was said by this Court, in Freas v. Jones, 3 Green’s R. 20; but on one or two occasions, since that case was decided, we have expressed an opinion, that the objection ought to be to the bond, and not to the affidavit. The party by putting his affidavit on the bond, has in effect deprived his advei’sary of the benefit of it: for the Court of Common Pleas cannot deliver the bond to the appellee, for prosecution, without delivering with it, the affidavit also, which ought not to be done. — If the objection had in this case, been made to the bond, the appellant might immediately have substituted anew one; but another affidavit would have come too late. Let a mandamus therefore issue, as prayed for.

Ford and Ryebson, Justices, concurred.

Mandamus Ordered.