CASES AT LAW

DETERMINED IN THE

COURT OF ERRORS AND APPEALS

OF THE

STATE OF NEW JERSEY

JUNE TERM, 1919.

HENRY KOCH, TRADING AS H. KOCH & COMPANY, RESPONDENT, v. STEFANO COSTELLO AND DOMENICO BOTTI, APPELLANTS.

Argued June 25, 1919-Decided November 17, 1919.

1. In moving for a nonsuit counsel should state specifically the grounds upon which the motion is rested; but the arguments thereon should not be taken down by the stenographer, and should not be returned with the record or printed.

2. That this court in reviewing judgments of courts of law has no power to pass upon the weight of evidence has long been definitively settled; and all judgments under review are to be sustained, so far as factual questions are concerned, if there be any competent evidence to support them.

3. The number of times an insolvent debtor may apply for his discharge under the act for relief of persons imprisoned on civil process. commonly called the Insolvent Debtors' act, is unrestricted.

4. When a bond given in pursuance of a statute is not in accordance therewith, but is not the product of coercion or duress, is not prohibited by statute nor contrary to public policy, is founded upon good and sufficient consideration and intended to subserve a good and lawful purpose, it is good as a voluntary bond; and recovery had thereon, if supported by competent evidence, will be upheld.

5. Merely appearing in the Common Pleas Court, in compliance with the condition of a bond under the Insolvent Debtors' act, and doing nothing more, is not a compliance with the condition to appear; the debtor is required to do more; he must appear for a purpose, and is required, by himself or counsel, to crave audience of the court and announce the purpose of his presence, and he must also, in all things required of him, comply with the conditions of the insolvent laws.

6. Although the Insolvent Debtors' act leaves unrestricted the number of times a debtor imprisoned on civil process may apply for his discharge, does this give him the right to so apply on the identical set of facts adjudged against him on a last prior application; and would not the doctrine of res adjudicata operate to defeat such last identical application: Quære.

The opinion of the court was delivered by

WALKER, CHANCELLOR. This is an appeal from a judgment recovered by the plaintiff in the New Jersey Supreme Court, Essex circuit, in an action instituted against the defendants to recover on a certain bond given by them, Stefano Costello, as principal, and Domenico Botti, as surety, for the use and benefit of the plaintiff, in insolvency proceedings then pending in the Passaic County Court of Common Pleas Judgment was directed by the court in favor of the plaintiff and against the defendants, and they have appealed to this court.

The bond was given in the following circumstances: Stefano Costello was arrested on a capias issued out of the District Court of the city of Passaic, on a certain judgment recovered by the plaintiff against him, and by virtue of the capias he was delivered to the sheriff of the county, and thereafter he entered into an insolvency bond, and filed his inventory and petitioned to be discharged as an insolvent debtor. An order was made by the court fixing a time and place for hearing. On that day the execution creditor appeared and

objected to the debtor's discharge, and thereafter the court made an order dismissing the petition and remanding the debtor to prison. The defendant Costello then entered into a second bond in the same terms and conditions, and again petitioned the court for his discharge. The court fixed a time. and place for the hearing. The execution creditor again appeared and objected to defendant's discharge. After this hearing an order was entered dismissing the second petition and remanding the debtor to jail. He then entered into a third bond.

The first two bonds were given under section 2 of the Insolvent Debtors' act (Comp. Stat., p. 2821), and the last one purports to be given under section 13.

Section 2 of the act provides that on his application for discharge from imprisonment the defendant shall, among other things, give bond to the plaintiff, at whose suit he is. arrested, with sufficient security, &c., with condition that he will appear before the next Court of Common Pleas, to be holden in the county, and petition the court for the benefit of the insolvent laws of the state, and that he will in all things comply with the requirements of those laws and will appear in person at every subsequent court until duly discharged as an insolvent debtor, and if refused a discharge, surrender himself immediately to the sheriff or keeper of the jail of the county, there to remain until discharged by due course of law.

The bond sued on recites that Costello had made application to the Passaic Pleas, to be discharged pursuant to section 13 of the act, having been remanded to jail upon the court not being satisfied with the truth and honesty of his declaration and confession, nor with the truth and fairness of his account and inventory exhibited in the cause, and proceeds:

"Now, therefore, if the said Stefano Costello shall appear before the next Court of Common Pleas, to be holden at Paterson, on the fourth Tuesday of April, 1916, shall in all things remaining fully and honestly comply with all requirements of the insolvents laws of this state, and shall appear beVOL. XCIII.

21

fore the court according to law, and if refused a discharge, surrender himself immediately thereafter to the sheriff or keeper of the jail of the county of Passaic, and thereto remain until discharged by due course of law, then this obligation to be void, otherwise to remain in full force and virtue."

The breach of condition is alleged to be that Costello did not appear at the next term of court after the giving of this bond, and did not petition the court for his discharge under the insolvent laws, and did not comply fully and honestly with all the requirements of those laws, and did not surrender himself to the sheriff or keeper of the jail of Passaic county; by reason whereof, &c.

The grounds of appeal are: (1) Because the trial judge refused to nonsuit the plaintiff. (2) Because the trial judge directed a verdict in favor of plaintiff and against defendants over the objection of defendants, whereas he should have directed a verdict in favor of defendants. (3) Because the trial judge directed a verdict in favor of plaintiff and against the defendants over the objection of defendants, whereas he should have submitted the case to the jury for its verdict. (4) Because the judgment rendered in the above cause is contrary to law. (5) Because the evidence in the trial of the cause did not warrant a judgment in favor of the plaintiff and against the defendants. (6) Because the evidence adduced on the trial of the above cause warranted a judgment in favor of the defendants and against the plaintiff. (7) Because the verdict was contrary to the weight of the evidence.

The first ground of appeal-that the trial court should have granted a nonsuit-is invalid. Turning to the case we find no specific ground upon which the motion to nonsuit was rested. Counsel for defendants said: "I think the plaintiff has failed to make out his case. I cannot see where the defendants, or either of them, have failed to comply with the conditions of the bond." The court, after colloquy with counsel on what appear to be entirely irrelevant questions, observed that the bond was not the one that should have been given, and that while section 13 was not mentioned, it seemed