Raymond v. Merchant , 4 Cow. 129 ( 1825 )

Curia.

We find no decision applicable to. this question; and it must therefore depend upon the meaning of the statute to be gathered from its language and object. Its language is general, and embraces writs of error which are prosecuted upon a judgment in any personal action. It is supposed that the condition which the statute requires to be inserted in the recognizance, that the plaintiff in error shall pay the debt or damages and costs, restricts its meaning to those cases only where the judgment upon which the writ of error is brought shall be for the plaintiff below, or at any rate for something besides costs; as the wording would be partially inapplicable to a judgment for costs merely. In fixing the form, the legislature probably had an immediate eye to the common case of a debt or damages and costs; but their intention, as indicated at the beginning of the section, cannot have full effect, without a construction which reaches the present case. -There certainly can be no good reason why bail should be required where nominal damages with costs are given; and yet should be denied for costs alone. The latter case is equally within the mischief intended to be remedied; and the act should be construed liberally with a view to suppress the mischief.^(a)

The question, however, is novel, and the recognizance was omitted upon the belief that it was not necessary. The motion of the plaintiff is to set aside the ji. fa.; that of the defendant, to prosecute the security heretofore given. Strictly, the defendant’s motion should be granted and the plaintiff’s denied; but, under the circumstances of the case, the plaintiff may take a rule that both motions he denied on the plaintiff’s filing, within 20 days, a proper recognizance to prosecute the writ of error; and on payment of all the costs of both motions. If the costs be "not paid, the defendant may enter his rule to prosecute.

We do not mean, by this indulgence, to be understood as innovating at all upon the ordinary rule, limiting the time of putting in bail on error.^(b) We depart from it in this instance, only upon the peculiar circumstances presented by the case.

Rule accordingly.

(a) Abett v. Ellis, 1 B. & P. 249, per Eyre, C. J. and Buller, J. ace.

(b) Vid. Blunt v. Greenwood, 1 Cowen’s Rep. 15, 18,21.