Majority
p. 379Louis vs. Mitchell and others.
Headnote
Special bail, if excepted to, must each justify in at least double the amount ordered.The case of Cromelines ads. Beldens, ( 1 Wend. 107 ,) commented on and explained.
Justification of bail. The amount of bail required by the copias issued in this cause was mitigated by the recorder of New-York to $1000. Special bail was-then put in, and having been excepted to, were allowed by the recorder to justify on proof of their being each worth the sum of $1000. The plaintiff objected that the justification was insufficient, and appealed to this court.
P. J. Joachimssen, for the plaintiff.
C. Me Yean, for the defendants.
By the Court,
The settled practice of this court is to require each of the bail to justify in double the amount ordered. In Cromelines ads. Beldens, ( 1 Wend. 107 ,) this practice was departed from, but the case was made an exception to the general rule .on account of the magnitude of the demand; and the learned judge who delivered the opinion of the court expressly repudiated the intention of making it a precedent in ordinary cases. Perhaps the rule of the K. B. in England, which requires a justification to the extent of only 1000l. more than the debt sworn to when that amounts to 1000l., is the most reasonable one; (1 Arch. Prac. 86;) but we have not adopted it.
p. 380
There is certainly more reason for requiring a justification in double the sum ordered, where it has been fixed by the officer, than in a case where the amount is taken from, the writ, which usually states the indebtedness at double the sum really claimed. I think the justification should be set aside and taken anew before the recorder; but as the error was made by the latter, no costs are allowed.
Ordered accordingly.
Cases cited
- Cromelines v. Beldens 1 Wend. 107 p. 379