
    CAMDEN DISTRICT,
    FALL TERM,
    1793,
    Harville v. Meyers and Goodwyn.
    An attachment bond, taken.by a justice of the pea.ce, was, by mistake, made with condition to prosecute an action in the County Court, fop, a demand exceeding the jurisdiction of that court: held, that the bQjjd, was void, and demurrer sustained to an action for breach of the condij tjon. Per tatam.curiam, vide 2 Bailey, 376.
    -Debt on a bond, to prosecute an attachment. The defendant, •Goodwyn, bad obtained a domestic attachment against th,e plaintiff; and the justice of peace, who granted the same, took this bond, but, by mistake, made it returnable to the County Court, when, by act of assembly, it should have been returnable to the District Court, the sum being over the County Court jurisdiction. The attachment was levied on moveables, which Goodwyn took possession of, and converted to his own use, and never prosecuted his suit further. The defendants pleaded a special plea in bar, that, the bond was not taken according to law, and, therefore, void ; to which the plaintiff demurred.
    It was argued, by Hunt, for the plaintiff,
    1st. That the bond is good, and the condition only void. That it was good in its creation, being entered into voluntarily, by proper parties, upon good and le. gal consideration. That the condition is neither malum in se, malum prohibitum, nor contrary to state policy. 2d. That it had not by any thing subsequent to its creation, become void. That if the plaintiff could not perforar the condition, it was his own folly to bind himself to do so ; and he shall not escape the penalty by reason of the impossibility of performing the condition, any more than if the condition had been to go to Romo, and return in three hours : and, therefore, the condition is ipso fado void, and the obligation-stands single and good. P. L. 367. Co, Litt. 206. Bull. N. P» 164. Esp. Dig. 184, 200. Powell on Con. 260, 267, 268.
    On the other side, it was answered, that the bond was taken contrary to the act of assembly, which authorizes the taking of bonds by justices of peace, for prosecuting attachments to effects and was, therefore, unlawful and void. Co. Litt. 206.
   Per c,ur.

Waties, J.

The intention of the parties must be considered. Now this intention cannot be effectuated by this bond'» It is impossible that the plaintiff can, or ever Could, prosecute the suit in the court in which the condition requires that he should. It could not have been the plaintiff’s intention to bind himself to do it. He signed the bond by mistake, and it was the fault of the magistrate, and not of the party. It was the duty of the magistrate to take a proper bond ; and all bonds taken by him, otherwise than according to the law, which gives authority to him in such cases, must be deemed void. And, therefore, .there must be judgment for the de, fendants. See Hob. 14. 1 Lord Raym, 145.

The judgment in this case, was affirmed, upon appeal, by a full. Bench, at Columbia, in December, 1793.  