Ring v. Gibbs

26 Wend. 502

Opinion

At the close of the argument, the Chancellor said that he was inclined to think that no member of the court could desire time for consideration before proceeding to judgment in this case. It appeared to him a very plain case. The supreme court had held the bond void, but he could not perceive for what reason. It was not a bond taken colore officii, for though taken by the officer who had issued the warrant, it was not a bond to himself, but was executed to and for the benefit of the parties suing out the warrant.

* Nor did the variance of the condition from the terms of the statute, render the bond void. It was voluntarily executed by the obligors, and though broader in its terms than could have been required by the obligees, the latter had no right on that account to object to it; nor can the former, having had the full benefit of the proceeding, complain that they had bound themselves to do what could not have been required of them. As to the defects in the declaration, such as the want of averment of request and the like, the presumption of the law is, that all facts necessary to entitle the plaintiffs to recover were proved on the trial, or the jury would not have found a verdict for the plaintiffs; these defects, therefore, constituted no cause of error. He was of opinion that the judgment of the supreme court ought to be reversed, and that of the common pleas affirmed.

Whereupon the question was put, Shall this judgment he reversed ? and all the members of the court present, who had heard the argument of the case, (twenty-two in number,) answered in the affirmative.

The judgment of the supreme court was accordingly Reversed.

See Acker v. Burrall, 21 Wendell 605, and S. C. in error, 23 Id. 606.