Murray v. Buck — 10 Wend. 619

Majority

p. 619

Murray vs. Buck.

ALBANY,

Feb. 1834,

Headnote

Bail in error must justify that each of them is worth double the amount of the penalty of the bond.

Where bail justified that each was worth the amount of the penalty only, the justification was held insufficient, but the party was allowed to justify anew, on payment of costs.

This was a motion to supersede a writ of error, for the cause that the sureties of the plaintiff in error, in their affidavit of justification, did not state that they were each of them worth double the amount of the penalty of the bond filed upon the suing out of the writ of error; the affidavit stated that they were each worth the sum specified in the penalty.

In opposition to the motion, it was urged that the statute, 2 R. S. 597, § 35, ought not to receive a literal construction ; that previous to the revision, all that was required on the suing out of a writ of error was, that the plaintiff in error, with two sureties, should enter into a recognizance in double the sum recovered by the judgment. 1 R. L. 143, § 2. Now a bond must be given in the penalty of double the amount of the judgment.

p. 620

and if each surety is required to justify in double the amount of the penally, the plaintiff has security to eight times the amount of the recovery. Such could not have been the intention of the makers of the law, and though within the letter, it is hot within the spirit.

But,

the law is positive in its requirements ; and though the security seems unreasonable in amount, we cannot gainsay the statute; the remedy must be applied by the legislature. The party here should not, however, lose his writ of error, and we therefore will give him time to justify anew, on paying the costs of this motion.