Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lully v. National Surety Co.

Decided: February 3, 1930.

SOPHIE LULLY, ADMINISTRATRIX AD PROSEQUENDUM OF ANTHONY J. LULLY, DECEASED, APPELLANT,
v.
NATIONAL SURETY COMPANY, A CORPORATION, LUDWIG HELD AND LUDWIG HASCHER, RESPONDENTS



On appeal from the Essex County Circuit Court.

For the appellant, John V. Laddey.

For the respondent, Benjamin P. De Witt.

Walker

The opinion of the court was delivered by

WALKER, CHANCELLOR. This was an action at law in the Essex Circuit Court on a recognizance of bail executed by

the defendants, made to the plaintiff as administratrix ad prosequendum, &c. There were two bonds, treated as one.

The defendants gave notice to the plaintiff that they would move before the Circuit Court to strike out the causes of action contained in the complaint, on the ground that the first cause failed to contain any allegation that a capias ad satisfaciendum was issued to the sheriff and returned non est inventus in compliance with paragraph 79 of the Practice act; (2) the second cause of action was the same as alleged as to the first cause. The matter came on for hearing before Circuit Court Judge Porter, who, in deciding the motion, made the following deliverance:

"On motion to strike out the complaint. The action is brought to recover the amount due the plaintiff from the defendants under the terms and conditions of a recognizance of bail. The complaint sets forth the terms and conditions of said recognizance, and charges a breach of said conditions. Several reasons are urged on behalf of the defendants in support of the motion. The only question to be considered on this motion is whether or not the complaint sets forth a proper cause of action.

"Section 79 of the Practice act provides:

"'After a capias ad satisfaciendum shall have been returned non est inventus, the plaintiff may proceed against the bail upon their recognizance.'

"Under this statute it seems prerequisite that a compliance with its provisions must be had before an action on the recognizance will lie. That being so, the complaint must contain an averment to that effect. There is none such in this complaint. Morgan v. Bowman, 103 N.J.L. 543, is cited by the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.