Majority
p. 323Foster, assignee of Artcher, sheriff, &c. vs. Rainsford, impleaded with Slingerland.
Headnote
Where the surety in a bond to the sheriff for the appearance of S. on a capias ad resp.j pleaded comperuit ad diem.; a replication that S. was an infant, and did not appear by guardian, was held bad.Demurrer to replication. The action was in debt by Foster, as assignee of the sheriff, on a bond executed to the sheriff by Slingerland principal, and Rainsford his surety, on the arrest of the former in virtue of capias ad respondendum, conditioned that Slingerland should appear by putting in special bail. The declaration was in the usual form. Plea, by Rainsford, that Slingerland did so appear. Replication, that Slingerland was an infant, and did not appear by guardian. To this Rainsford demurred, and the plaintiff joined in demurrer.
H. G. Wheaton, for defendant Rainsford.
J. Percy, for plaintiff.
The replication is bad. The condition of the bond was, that Slingerland • should appear by putting in special bail, &c. and the plea is, that he did so appear. This is a literal compliance with the condition. It is no answer to say that he was an infant and did not appear by guardian. The condition of the bond has no
p. 324
relation to the kind of agent by which Slingerland was to appear. The object was simply to secure the payment of the judgment to be recovered, so far as special bail may operate as a security. Surely the plaintiff would not have been content with his appearing by guardian. That would not have answered the bond; nor is there any need of a bond to compel such an appearance. Another remedy is given by the statute, which the plaintiff might have resorted to. (2 R. S. 364,2d ed. § 10, 11, 12.) The court has always had rules by which they would protect the plaintiff against the consequences of an infant appearing by attorney; but a bail bond has never been understood to respect that. It has always been used merely to compel the putting in of special bail.
Judgment for defendant.