Emanuel v. McNeil

• Decision Date: 14 June 1915
• Docket Number: No. 83.,83.
• Citation: 87 N.J.L. 499,94 A. 616
• Parties: EMANUEL v. McNEIL.
• Court: New Jersey Supreme Court

94 A. 616

87 N.J.L. 499

EMANUEL

v. McNEIL.

No. 83.

Court of Errors and Appeals of New Jersey.

June 14, 1915.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Sunta Emanuel against George A. McNeil. Judgment for defendant, and plaintiff appeals. Reversed.

Charles P. Brewer, of Vineland, for appellant. Joseph A. Corio, of Atlantic City, for appellee.

WALKER, C. There was an action in the Supreme Court brought by the appellant, Sunta Emanuel, against Irving F. McConnell, in which the defendant was arrested on a capias ad respondendum and released on bail. Judgment passed against defendant, and, failing to pay the damages and costs awarded against him, a capias ad satisfaciendum was issued and returned non est inventus. The present suit was thereupon brought against the respondent, George A. McNeil, who was surety on the bond or recognizance given by defendant to the plaintiff under the statute. The case was submitted to the trial court without a jury, and the judge found for the defendant and against the plaintiff, because, as he observed:

"The condition of the bond or recognizance of bail in the suit is more burdensome than that set forth in the statute, thereby rendering the bond void."

Whereupon judgment was entered that the complaint be dismissed, and that the defendant recover costs of the plaintiff. To review this judgment the present appeal is brought.

To sustain the position taken by the trial judge the respondent contends that, when a defendant is arrested on a capias ad respondendum, he shall be released from custody only upon entering into a recognizance in the precise form of bond set out in section 69 of the Practice Act (3 Comp. Stat. 1910, p. 4072), the condition of which concludes:

"That if the defendant, C. D., shall be condemned in this action at the suit of A. B., the plaintiff, he shall pay the costs and condemnation of the court, or render himself into the custody of the sheriff of said county for the same, or if he fail so to do, that the said E. F. and G. H. will pay the cost and condemnation for him or render him into the custody of the sheriff of the said county."

Appellant truly states that formerly the recognizance omitted the last recited condition, namely, "or render him into the custody of the sheriff of the said county" (2 Gen. Stat. 1895, p. 2546, § 75), and that the Legislature, in revising the Practice Act in 1903 (P. L. 1903, p. 537), added the last quoted clause to the form of recognizance. It is obvious, therefore, that the bond sued upon was drawn from the older form, and the draftsman doubtless overlooked the revised Practice Act of 1903, or he probably would have drawn the bond in the form therein set out.

Appellant contends that, under the statute as it now stands, the surety had the same protection as his principal, that both have the choice of two alternatives, either surrender or payment, and adds that, if either alternative is denied, it is obvious that a substantial statutory right has been taken away, and argues that when there is a substantial variance from the statute in a statutory bond, and especially if the variance renders the bond more burdensome than one in statutory form would be, it is void. All this may be conceded, and yet it must be held that the recognizance under examination was not void, and that the trial judge erred in holding that it was "more burdensome than that set forth in the statute." Even if it be more burdensome in form than set forth, it is not more burdensome than the statute itself makes the surety's obligation.

It is to be observed that the statute does not provide that the recognizance shall be in the form, but to the effect, therein set forth. Therefore it need not conform literally, but only substantially, to the form set out. As shown, the last alternative in the form of condition contained in the statute, viz., "or render him into the custody of the sheriff," is omitted from the bond, and, if the surety's only right to surrender his principal resided in the absent condition, then it may well be that the bond would be void because of a substantial variance which deprived him of an efficacious defense. But it is provided in section 77 of the Practice Act of 1903 that subsequent to the return of the capias ad respondendum, either before or after judgment, the defendant may render himself or be rendered in discharge of bail, provided such render be made within 20 days after the return day of the scire facias or of the process in an action on the recognizance of bail and not after.

The statutory provisions of the Practice Act above mentioned are both under the heading, "VII. BAIL"; and section 69, requiring the recognizance to be to the effect therein set out, is under the subdivision, "2. Bail. How Given"; while section 77 is under the subdivision, "4. Render in Discharge." It thus appears that sections 69 and 77 are dissociated the one from the other, and are entirely independent provisions. Surely, then, failure to insert in the recognizance of bail the alternative condition, which was omitted, cannot operate to nullify the provision contained in section 77, which enables a defendant to render himself, or his surety to render him, in discharge of bail. Therefore the respondent was not deprived of his right to render his principal in discharge of bail, notwithstanding the omission of the condition to that effect in the bond, and consequently the recognizance was not in fact more burdensome than that set forth in the statute. The condition invoked, namely, that if the defendant, McConnell, should be condemned in the action, he should pay the costs and condemnation or render himself into the custody of the sheriff, or, upon failure so to do, the surety, McNeil, would pay the costs and condemnation for him, is present in the recognizance sued on, and a breach of this condition was found by the court.

In the early English case of Milward v. Clerk, Cro. Eliz. 190, Eng....