Covenhoven v. Seaman , 2 Cai. Cas. 322 ( 1796 )

Per Curiam,delivered by Kent J.

The defendants by this recognisance, and which appears to have been taken agreeably to precedent, undertook for three things.

1st. That Jacob Jones should prove his liberty in the most expedient way.

2d. That he should personally appear in this court,

3d. That he should prosecute his suit in that behalf with effect.

Instead of this it appears that Jacob Jones has not proven his liberty, nor prosecuted his suit with effect, but has suffered judgment to be entered against him as in the case of nonsuit, and has, at the prayer of the plaintiff, surrendered himself to him.

The condition of this recognisance has certainly not been complied with; a party submitting to a non-suit, does not prosecute a suit to effect ;^* nor if the writ be abated for any cause, will it save the recognisance, unless another writ be sued out with due diligence ; the case given in Fitzherbert^† is closely analogous to the present. “In abomine replegiando, the plaintiff was bound in a recognisance in a certain sum of money to the defendant’s use that he would sue him, cum effectu ; and if the writ be abated for any cause yet he ought to sue another writ for that taking, &c, otherwise he shall forfeit his recognisance. H. 8. H. 4.

The only question that can be raised in this cause; is whether the surrender to the plaintiff is a discharge from the recognisance. I find no authority, nor any reason to think so; there were good inducements for the stipulations in the recognisance that a suit should be prosecuted to effect, and the question of the freedom or servitude of Jacob Jones judicially determined. It would either silence the unjust pretensions of the plaintiff, and for ever deliver the man from bondage, or it would quiet him in the lawful possession of his property. The surrender of Jones to the plaintiff, and his acceptance of him, leaves the question still undetermined.

I am, therefore, of opinion, that the plea is bad and that judgment be rendered for the plaintiff.

Judgment for the plaintiff

* Carth, 519.

† N. B. 68. a.