For the appellant, Meyer C. Ellenstein (Wolber & Gilhooly, of counsel).
For the respondent, Benjamin M. Weinberg.
The opinion of the court was delivered by
BODINE, J. The present action was brought against the surety on a recognizance in a suit commenced by capias. The complainant alleges the recovery of a judgment and the return of executions unsatisfied.
The facts being stipulated, Judge Mountain gave judgment for the defendant, basing his action upon two grounds: (1) That the capias ad satisfaciendum did not lie in the sheriff's office four days before being returned non est inventus; and (2) that the original action in which the recognizance was given was for slander and alienation of affection and was later enlarged so as to include a count of malpractice, which enlargement defeated recovery.
The capias was issued on affidavits tending to prove slander and alienation of affection. The complaint filed alleged in a third count malpractice. At the trial, the count for malpractice was eliminated, and a verdict was rendered upon the grounds set forth in the affidavits.
Judge Wilde in Seeley v. Brown, 14 Pick. 177, 180, said: "Now, if the amendment might embrace a new demand, yet
as judgment was rendered on the original demand only, the bail are not liable but to that extent, and cannot therefore be injured by the amendment. To hold the bail discharged under these circumstances would be going quite too far."
"Any alterations or amendments in the writ of 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 changes the legal nature of their obligation operate to discharge the bail, unless the judgment is rendered on the original demand only." 6 Corp. Jur. 924, § 91. (The italics ours.)
Robeson v. Thompson, 9 N.J.L. 97, was a case where the verdict was on a different cause of action than that set forth in the affidavits for the capias. Hence, the surety was discharged.
The form of recognizance in the present case, so far as pertinent, was as follows: "A & B severally acknowledged themselves to owe * * * upon condition that if the defendant, A, shall be condemned in this action * * * he shall pay * * *, or if he fails so to do, that the said B will pay the costs and condemnation for him, or render him into the custody of the sheriff of said county." The vital words are "shall be condemned in this action." The condemnation was in the action set forth in the affidavits. The contract of suretyship was never enlarged or altered.
In Penny v. Penny, 102 A. 257, a ne exeat bond was given in a divorce proceeding. The petitioner failed to establish her case on the ground alleged, and amended by setting up another cause of action upon which she had her decree. Obviously, the surety was ...