6 Paige Ch. 258 | New York Court of Chancery | 1837
From the facts which are stated in the bill, and in the affidavits in this case, independent of the denial of the defendant in his answer that the complainant ever signed the bond as his surety either by his consent or with his knowledge, which I lay entirely out of view, as it appears to be doubtful whether the answer was regularly before the vice chancellor on the motion, I think the defendant was properly discharged from custody on the ne exeat; and the bond given to the sheriff should also have been delivered up and cancelled.
In the case under consideration the bond is in the nature of a penalty or forfeiture. And if the condition thereof is broken, the government, or sovereign, to whom it is given may at law recover the whole $2500 as a stipulated forfeiture, and without reference to the actual injury sustained by the master or owner of the colored man who escaped from servitude on board the brig. (Ray v. The Duke of Beaufort, 2 Atk. Rep. 194. Benson v. Gibson, 3 Idem, 396. The United States v. Hatch and Barstow, 1 Paine’s C. C. Rep. 336.) And it would be contrary to the settled principles of this court to interfere actively, either in behalf of a surety or .otherwise, to compel a party to pay a forfeiture or penalty before it had been legally ascertained that either the defendant of his surety would or could be compelled to pay such penalty. Under the circumstances of this case it is at least doubtful, notwithstanding the opinion of the agent >yho has sworn to his belief of the truth of the allegations contained in the bill, whether either of the parties to this suit are legally liable for the payment of the bond. Without knowing, however, the precise terms of the colonial law under which the bond was taken, it is impossible to form a correct opinion on that question. And it is not pretended in this case that the complainant’s agent had any other
The order appealed from must therefore be affirmed, with costs.