Caldwell v. Brindle

Per Curiam. In the days of the province, our legal practice was formed on the model of that of the Common Pleas at Westminster; but it was not easy to comprehend how there could be a recognisance without a specific penalty, as it is in the King’s Bench. The instrument is an obligation for a debt, which ex vi termini imports a definite sum ; and it differs from a bond, which creates a prospective duty, principally in this, that it acknowledges the existence of an old one. In each, however, the allegation consists of a penalty and condition underwritten; and the one is as indispensable as the other to constitute it. It will not be pretended that a bond could be constituted by one of them without the other. We have stretched the forms of the law to prevent injustice from looseness of practice, especially in proceedings before justices of the peace ; but we certainly have not dispensed with matter of substance. In this respect, the case before us is stronger than Donley v. Brownlee, in which the penalty was specifically stated, but the condition was bad because it did not answer the exigency of the statute. Here the sum could not be supplied by reference to the debt and costs at the date of the recognisance; because it ought to have been large enough to cover the costs to come; nor could the court assume that it had, for that purpose, been taken for double [295] the amount: consequently the plea of nul tiel record was properly sustained. Judgment affirmed.