¶1.denied the motion, holding that the answer put in issue a material allegation as to the execution of the bond, and that within the above authority each surety must justify, and the bond be approved of; and the allegation in the answer, if true, constituted a defense; and that the practice required that the question of law be raised by demurrer, if the plaintiffs wished to proceed in the action.
44 How. Pr. 332
Lake v. Morse
New York Court of Common Pleas
Decided September 15, 1872
New York Court of Common Pleas · decided 1872-09-15
The action was commenced on a bond given under .the statute for a non-resident as security for costs in the case of Sheldon agt. Lake, in pursuance of an order made on motion. The defendants, as sureties, signed the bond ; one justified by affidavit on being excepted to, and the other declined to justify. The bond was duly filed, but was not approved of.
Decided 1872-09-15