Mitchell v. Thorp
New York Supreme Court
Demurrer to pleas. The declaration is in debt on a recognizance entered into on the suing out of a writ of error to remove into this court a judgment in favor of the plaintiff against one Thorne, rendered in the New-York common pleas, for $83,43. The recognizance was.acknowledged on 2d July, 1823. The judgment was affirmed in this court, and $309,13 were adjudged to the plaintiff for damages, &c. for delay of execution.
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Demurrer to pleas. The declaration is in debt on a recognizance entered into on the suing out of a writ of error to remove into this court a judgment in favor of the plaintiff against one Thorne, rendered in the New-York common pleas, for $83,43. The recognizance was.acknowledged on 2d July, 1823. The judgment was affirmed in this court, and $309,13 were adjudged to the plaintiff for damages, &c. for delay of execution. The defendants pleaded that the judgment in the common pleas was entered up and docketed on 26th June, 1823; that previous to the acknowledgment of the recognizance, to wit,…
1Opinion of the Court
By the Court,
Savage, Ch. J.
it is argued for the defendants that as the only object of the recognizance was to obtain a delay of execution, and as that object was not at*288tained, the recognizance is not operative. But it has been decided in Johnson v. Lasene, 2 Li. Raym. 1459, that bail in error are bound by their recognizance, though the plaintiff in error had no occasion to put in bail. That was the case of a recognizance entered into on behalf of executors, who by the statute were under no- necessity to give bail to. stay execution, and therefore it was contended the recognizance was void ;…
2Cited by8 opinions
- Post v. . DoremusNew York Court of Appeals · 1875
- State v. CapawannaSupreme Court of New Jersey · 1937
- State v. HainesSupreme Court of New Jersey · 1927
- Ward v. . WhitneyNew York Court of Appeals · 1853
- Mossein v. Empire State Surety Co.Appellate Division of the Supreme Court of the State of New York · 1907
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