Shelton v. Pollock & Co.

Wednesday, Oct. 14th. The President delivered opinion of the court consisting of all the Judges “ there was error in this; that the declaration was not “ sufficient in, lav/ to maintain the action against Walker “ is? Garland jointly, on a bond, as stated in the declara- “ tion, in the singular number and'binding on Walker “ only; and also in this; that the shei-iff not having re~ “ turned the bail-bond given by the appellant (if any bond “ was by him given) for the appearance of Clifton Garland, “ or a copy thereof, to the clerk’s office before the day for “ the appearance of the said Garland in the said office to “ the suit of Pollock b Co. according to law, judgment “ ought not to have been entered against the appellant as bail for the appearance of ,the said Garland,, but against “ the sheriff for not returning the bail-bond, or a copy thereof, according to law.” the , “ that

A question was raised by Mr. Call whether the suit should not be sent back for farther proceedings. He contended that by amending the declaration and averring that the bond was given by Walker for himself and .Garland, iwith Garland’s consent, the plaintiff might recover. The court gave no opinion on this point; but observed that, where the declaration was defective, it was the constant practice of this court to reverse the judgment altogether, and not to direct a repleader.(e)

The judgment was therefore reversed in toto.