Hand v. Allen

The opinion of the court was delivered by

It is obvious, that after the adjournment of court, and before any of the sums became due, the recognizance is to be taken to perform the entire order of the court. And as the several sums become due, they are to be paid, before the judge is by law required to accept of a recognizance; but after that, the *108recognizance, when taken, is to be in similar form, to perform the orders of the court. And unless a portion have already been performed, by payment, the entire obligation rests upon the connusors, in terms certainly, and we do not perceive that there is any irregularity or illegality in such being the operation of the recognizance. We think it would savor of over refinement, to avoid this recognizance, because it included an installment over due, which before it became due, confessedly was intended to be included.

Judgment affirmed.

Note. Some such cases may doubtless be found in the books; but they are cases which a judicious progress, and a rational conservatism, would alike desire to see disregarded. It has been by an obstinate adherence to just such antiquated refinements, that all which is wise and just and useful, in the common law system of pleading, is becoming obnoxious to popular clamor, and by which it must ultimately be overthrown. In the American States we adhere with unflinching pertinacity, to the most absurd subtleties of special pleading, while in England they are, from time to time, introducing new and important ameliorations, in conformity with the demands of the altered modes of business, thought and action.