Fender v. Stiles

Mr. Chief Justice OatoN, delivered the opinion of the Court. The only question in this case, of the least importance, is as to the sufficiency of‘the declaration. That must show, either that the obligors had notice of the action against the obligee, and an opportunity to defend it, or else, that Atkins really had a good cause of action on which he recovered, or might have recovered, against the obligee. Such we regard the rights of the obligors in a bond of indemnity. There is no averment that the obligors had any opportunity of defending any action or proceeding .against the obligee; but the bond shows upon its face, that Atkins had a cause of action against the plaintiff, upon which he had a right to recover, and that bond is set out in, and constitutes a part of, the declaration. It shows that Atkins had deposited money with Stiles, as stakes upon a horse-race. And we know, as a matter of law, that Atkins had a right to recover from Stiles the money thus deposited, no matter what the event of the race was. The case is the same as if the bond had recited, that Stiles had so mucb money in his hands, which Fender wanted him to pay over to hirn, to indemnify him for doing which, the bond was given. ' Oould any other averment or statement be required, in order to show that Atkins had rightfully recovered against Stiles ? The declaration is sufficient. Three parties were sued, and two only were served, and judgment was rendered only against them; and this is complained of as error. This was in pursuance of the express and literal provisions of the statute,* and was, of course, right. There is some complaint about the amount of damages. This amount' was expressly agreed upon by the parties, as appears from the record., The judgment is affirmed. Judgment affirmed. Footnotes [*] Rev. Stat. 1845, 413, see. 6.