Oliver v. Howell , 5 N.J.L. 581 ( 1819 )

Southard J.

Oliver was taken upon a warrant issued by justice Vanhorn, and with Tillman, entered into a recognizance for his appearance at a future day, according to the directions of the statute. Oliver did not appear at the day, and the plaintiff, Howell, refused to proceed to try his cause, but suffered a nonsuit, and commenced this action against Oliver and Tillman on the recognizance. The summons was returned, served “ by leaving a copy with the wife of John Tillman, one of the defendants.” The judgment is against both, for 35 dollars, debt, and 5 dollars, 19 cents, costs.

Two errors appear in this record. 1. The summons was served on one only of the defendants; the judgment is against both, ^(a)

2. Howell ought to have tried his action against Oliver, and obtained judgment against him before ho brought suit on the recognizance. ^(b) By suffering a nonsuit, he precluded himself from his action against the defendant and his bail. See Bloom. 54, sec. 13.

Judgment reversed.

(a) Ford vs. Munson, 1 South. 93.

(b) Graecen vs. Allen, 2 Gr. 74. Condit vs. Baldwin, 4 Har. 143. Smalley vs. Vanorden, post 811. Cook vs Evans, 1 Har. 177. See Camman vs. Randolph, 2 Mal. 136.