Thompson v. Wilson

1 Blackf. 358

Opinion

Blackford, J.

It was the duty of the constable to take a bond payable to himself, if tendered, for delivery of the property. Stat. 1823, p. 84. Here the bond is payable, not to the officer, but to the execution-plaintiff; and, on that ground, the defend'ants below founded their demurrer. The objection to the declaration cannot be sustained. In prescribing one form of a delivery-bond, the legislature has not precluded every other. Bonds for ease and favour, or for indemnifying an officer for a breach of duty, are void by the common law. But this is entirely a different case. The defendant had a right to retain possession, upon giving bond according to the statute. He gave one, variant from that prescribed, but for the accomplishment of the same purpose. The plaintiff thought proper to accept it. It was executed voluntarily, and for a valuable consideration. We know of no principle of the common law, nor of any statutory provision, declaring a bond like the present, to be void. Morse v. Hodsdon, 5 Mass. 314. Upon demurrer to the declaration, judgment was entered for the plaintiff; and damages were assessed by the Court without a jury, by consent of the defendants, to the amount of the magistrate’s judgment, with interest and costs

Footnotes

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(1). There is no error in the proceedings.

Per Curiam.

The judgment is affirmed, with one per cent. damages and costs.

T) When the parties in any suit shall, by agreement, submit any matter to the determination of the Court, it may hear arid determine the same without a jury, and give judgment as in other cases. Stat. 1823, p. 297. Vide Van Fleet v. Adair, ante, p. 346, and note.