Wattles v. Laird, 9 Johns. 327

Wattles v. Laird

9 Johns. 327 | N.Y. Sup. Ct. | 1812

Per Curiam.

The defendant could' not, by pleading, set up any of the matters stated in the case, in bar of the suit oil the recognisance. The recognisance was strictly forfeited by the,return ©f non est to the ca. sa. and the recovery of the principal debt in another suit would not discharge the defendant, or his principal, un*328til the costs of the suit against hi~ principal were also paid. It is for those costs that the plaintiff mustt have proceeded in this suit. When he came to have his damages assessed upon the recognisance, the defendant might undoubtedly have given in evidence, in mitigation, recovery of the debt; and the assessment would then have been only for the costs of the suit against Stape; but the iudsinent would still have been, pro forma, for the penalty of the recó~nisance, and the p1aintiff would be entitled to levy on his execution the costs of this suit, and the damages so assessed. Judgment, therefore, must be entered for the plaintiff, according to the latter alternative in the ease.

Judgment accordingly.