Van Duyne v. Coope

1 Hill & Den. 557

• Court: New York Supreme Court
• Decided: July 15, 1841
• Status: Published

Opinion

By the Court, Cowes, J.

We think the learned judge erred in nonsuiting the plaintiff. We waive the question whether notice of the exception was given to the coroner or not; for we think that an exception entered on a replevin bond, with all the notice required by the statute, •followed by the mere neglect of the sureties to justify, will not work their discharge. The doctrine that an exception against special bail, and their omission to justify, displace them as bail, has no application. Yet the effect given to this exception at the circuit, was even greater than it would be upon a bail-piece; for in that case it operates merely as ground for ordering an exoneretur—a ground which has, I admit, been generally treated as conclusive on motion. But even in favor of special bail, it could not be interposed as a defence by plea against an action upon the recognizance. It is not necessary to say what effect the complete substitution of new bail might have in replevin, as a consequence of the exception. But independently of that, it is difficult to conceive of any act which would be a defence beside such as the law would recognize against any other bond containing a similar condition. This, it is well known, must be a strict compliance with the terms of the condition, unless prevented by the default of the obligee, or a release, &c.

New trial granted.