88 N.J. Eq. 160 | New York Court of Chancery | 1917
This matter is before the court on an order to show cause why a ne exeat bond should not be forfeited and the. penalty paid into court, following the practice in Schreiber v. Schreiber, 85 N. J. Eq. 303. The surety claims exoneration because the petition for divorce was amended, substituting a cause of action different'from the one pleaded when the bond was given.
The petition was filed October 13th, 1916, charging that the petitioner was compelled to leave her husband because of his. extreme cruelty — the acts of cruelty are recited in detail — and praying -that she be divorced a mensa et thoro, awarded alimony and the custody of their child. Three days later a writ of ne exeat issued. Upon being apprehended the defendant entered into bond with respondent as surety, with conditions as prescribed by Rule 192 (now 216). Being unable to' substantiate the charges at the hearing, the petitioner asked, and was
Bonds conditioned to obey writs of ne exeat are in the nature of equitable • bail and the obligations of sureties are substantially the same as bail at common law. Palmer v. Palmer, 84 N. J. Eq. 550; Schreiber v. Schreiber, supra; 2 Brandt S. & G. § 592; Johnson v. Clendenin, 5 G. & J. (Md.) 463. That a material amendment to a cause of action, upon which, as amended, the plaintiff relies for judgment, without the consent of the sureties, discharges the sureties, is uniformly laid down in the textbooks and the reports of decisions. I will quote from a few only.
In 6 Corp. Jur. 924 § 91, it is tersely put thus: “Any alterations or amendments in the writ or pleadings whereby a different or new cause of action is created and the bail is thereby subjected to a different or additional responsibility or is otherwise placed in a situation which materially changest the legal nature’ of their obligation operate to discharge the bail, unless the judgment is rendered on the original demand only.” To the same effect is Ping. S. & G. (2d ed.) 424, 426, §§ 412, 413; 1 Tidd’s Prac. 293, 449. In Wood v. Denny, 7 Gray
The question was put at rest early in this state in the case of Robeson v. Thompson, 9 N. J. Law 97, where the affidavit to hold to bail disclosed that the suit was on a book account, but the cause of action‘as set out in the declaration was on a special agreement to pay the debt in question. In declaring the variances fatal and the surety exonerated, the supreme court said: “Courts of justice suffer slight variances to be taken advantage of in this way. 2 Taunt. 107; 6 T. R. 363; 7 T. R. 80; 13 East 273. And it is right they should do so. Whoever attacks the liberty of the citizen should know the grounds on which he does it. Our statute requires an affidavit of the cause of action in order to hold to bail. And it should be stated truly. And bail may safely come forward and protect the debtor from imprisonment, even where he is liable, if that liability rests upon different grounds from those stated in the affidavit.”
Now in the case in hand the surety’s undertaking was that if the petitioner sustained her charges of extreme cruelty, as laid in the original petition, and thereon a divorce was granted with permanent alimony as an incident, he would respond if the defendant failed to submit himself to proceedings to enforce the decree, and there his .engagement ended; and when the petitioner failed to make out her case at the trial and substituted another cause upon which she recovered, his liability ceased. It may be surmised that when he performed this gracious act he was assured that the defendant was not guilty of the brutality of which he stood charged or that the charges could not be sustained and that there could be no decree, and to that extent was willing to take the risk of his enlargement; and it is
A further contention is tliat even 'if the surety cannot be held to the defendant’s performance of the final decree, the bond ought to be forfeited because of a default in the payment of taxed costs on an order for alimony pendente lite entered before the amendment'was made. The answer'to this is that there was no default until after the bondsman was released. The order to show cause why defendant should not be held in contempt was not issued until after the pleadings were changed.
The rule will be dismissed, with costs, and as the respondent’s liability is at an end, the bond will be ordered canceled and surrendered.