CORNISH V. KEESEE. VOL. 17 The declaration alleged, that, on the 26th of April, 1853, the defendant, Sims, as principal, and the defendant, Keesee, as security, executed to Drennom, as sheriff of Union coup ty, a replevin bond of that date, in the penal sum of $1600, conditioned as follows : That, whereas, Sims, had sued out of said circuit court a writ of replevin against Cornish, returnable to the June term, 1853, by which the sheriff, Drennon, was commanded to replevy a slave named Catron, and deliver her to Sims ; now if Sims should prosecute his replevin suit to effect and without delay, and if Cornish should recover judgment against him, Sims, in said action, he would return said slave, if return thereof should be adujudged, and [0392 pay Cornish all such sums of money as should be recovered against him, Sims, by Cornish in said action, for any cause whatsoever, then said obligation was to be void, else to remain in full force. &c., which bond and condition were 391 a ] "'CORNISH AS. AD, approved by Drennon, as sheriff, &c. ; V. and, thereupon, the slave was taken KEESEE. from the plaintiff; Cornish, and deliv-s. C. 21-530. ered to the defendant, Sims. That prior to the issuing and service of said Before the defendant in an action of replevin, writ of replevin, Cornish had been ap-where the plaintiff has failed to prosecute his re-plevin suit with effect, can mrintain a suit upon pointed by the probate conrt of Union the bond against the security, he must obtain some county, administrator of said John H. judgment in the action, against the plaintiff ; and Hines, deceased, and held said slave as au execution must be issued thereon and returned such, and as the property of Hines. unsatisfied in whole or in part. Profert is made of the letters of plaint-Error to Union Circuit Court. iff, as such administrator. ON. THOMAS HUBBARD, Cir- Breaches of the bond are assigned, in H cuit Judge. substance, as follows : for the plaintiff: 1. Breach: That Sims, with an at-Carleton, tempt to defraud Cornish, as such ad-Marr, for the defendant. ministrator, falsely and fraudulently ENGLISH, C. J. This was an action instituted said suit of replevin against of debt, brought by John H. Cornish, him, that by means thereof, he (well as administrator of John H. Hines, de-knowing his title to said slave was ceased, and assignee of Shadrack D. fraudulent and void) might obtain pos-Drennon, sheriff, &c., against George session of said slave. That he did get W. Sims and Gideon Keesee, in the possession of her by means thereof Union circuit court, upon a replevin that at the time, and ever since, he. bond. said Sims, was and has been, a non-res-
JAN. TERM, 1856. CORNISH V. KEESEE. ident of this State ; and having obtained That afterwards, at the December possession of her, he has, with like term, 1854, of said chancery court, it fraudulent intent, run her out of the was adjudged and decreed that the. jurisdiction of the court, and beyond claim of Sims in the replevin suit the limits of this State, to parts un-against Cornish, to the slave, was fraud-known, Sic. And has heretofore, well ulent and void ; that he be forever re-knowing he could not succeed, aban - strained from further prosecuting said cloned and neglected, and still does replevin suit against Cornish for the neglect to prosecute his said suit of re-recovery of said slave ; that said tem-plevin against said Cornish with effect, porary injunction be made perpetual ; and without delay, but wholly fails that said replevin bond be condemned and neglects so to do, whereby said, as forfeited, and that the same be forth-Sims has falsely and fraudulently con-with put in suit at law, to recover the verted said slave and her hire to his value of said slave and her hire, and own use, to the damage of plaintiff, as that Sims pay the costs of the replevin such administrator, to tli oe value of said s'iit; which decree remains in full slave, to-wit : $900, and of her hire, force, &c. The value of the slave and worth $300, &c. her hire, and the amount of the costs 2d. Breach : That after the com-in the:replevin, and in the chancery mencement of said replevin suit by suits, are averred. It is also alleged, Sims, for the purpose aforesaid on his that execution had been issued against part, on the 27th June, 1853, one Rhoda Sims upon the decree, and returned no Hines, the widow of said John H. Hines, property found. exhibited her bill in the chancery side 3d. Breach: That plaintiff, Cornish,. of Union circuit court, against saidCor-held the said slave as administrator of nish and Sims, claiming said slaveas her John H. Hines ; that Sims' claim to separate property, alleging that Sims the slave was fraudulent and void as was a non-resident of the State ; that to Cornish ; that Sims, who was a non-3931 The had no means in the State ; resident of the State, fraudulently, and that Cornish was hopelessly insolvent ; with an intent to defraud Cornish as. tbat Sims' claim to said slave was such administrator in that behalf, pro-fraudulent, and that she had petitioned cured said writ of replevin to be sued to become party to said replevin suit, out against Cornish at the time, place, but by the strict rules of law and the and in the manner aforesaid, that l:!e decision of the court she had been re-might, under color thereof, get posses-fused ; praying a temporary injunction; sion of said slave. That he procured, that said dispute between Cornish, with the like fraudulent intent, said Sims and herself, about the title of said writ to be levied on said slave. slave, might be removed to that forum; and her *delivery into his P394 and that Sims be enjoined from further possession ; and thereupon, fraudu-prosecuting said replevin suit in the lently, and for the purpose of defraud-law side of the court, which temporary ing Cornish, as such administrator, ouL injunction was granted, and said dis-of said slave, run her out of the juris-pute removed to said chanceiy court, diction of the court, and beyond the and Cornish and Sims made parties limits of this State, and to parts un-thereto. That Cornish filed his an-known, &c., and wholly abandoned swer and cross bill to said bill in chan-and neglected to prosecute said writ of cery, charging, among other things, replevin. That afterwards, on the 27th that the pretended claim of said Sims day of June, 1853, said Rhoda Hines, to said slave was fraudulent and void. widow of said John H. Hines, exhib-
CORNISH V. REESER. VOL. 17 Ited her bill on the chancery side of her hire, and the amount of the costs said court, claiming said slave as her in each suit are averred. That, by an separate property, and charging, among agreement entered of record, and the other things, that the claim of Sims decree of the chancery court made at set up in said replevin suit against the December term, 1854, the said re-Cornish, to said slave was fraudulent plevin bond, and the recovery thereon, and void ; that Sims was a non-resi-were to go to, and belong to Cornish, dent ; that he had removed said slave as administrator of said John H. beyond the limits of the State ; that Hines, less certain amounts to be de-he had no property or effects in the ducted out of said money after reState ; that the claim of Cornish to covery; and said recovery, except as the slave as the property of her said therein stated, will belong and enure husband was unjust; that Cornish was to plaintiff as such administrator. insolvent, and a judgment against him That execution had been issued against would be worthless ; and that there Sims upon the decree, and returned no was nothing within the jurisdiction property found, &c. of said chancery court, except the said That the replevin bond being so for-replevin bond ; praying an injunction feited, it was assigned by Drennan to of said replevin suit ; that Cornish and the plaintiff; as such administrator, at Sims be made parties ; that the whole his request, &c. matter be adjusted in the chancery The defendants had not paid to said court, and she substituted to the rights plaintiff the value of said slave, nor of Cornish to the said replevin bond. her hire, nor returned her to him. That Sims and Cornish were made par-Nor had they paid the costs in the re-ties to said suit in chancery ; that Cor-plevin or chancery suit. nish answered the bill, and charged, General breach—non payment of the as by cross-bill, that the claim of Sims replevin bond. to said slave was fraudulent. That the Sims not having been served with whole matter in relation to the title to process, the cause was dismissed as to said slave was removed from the law him. Keesee demurred to the declara-to the chancery side of the court. That tion on the following grounds: Sims failed to make any defense to the 1. There is no allegation in either of bill; or to prosecute his said replevin said breaches, that the plaintiff in this suit against Cornish with effect, and suit ever obtained judgment of any without delay, but in all things wholly kind whatever against Sims, the plaint-made default. That, at the December iff in the replevin suit. term of said chancery court, 1854, it 2. There is no allegation in either was decreed, that the claim of Sims to of said breaches, that Sims failed to the slave was fraudulent and void, that prosecute the replevin suit with effect he be forever restrained from further and without delay, or that the defend-setting up his title to said slave ; that ant therein (the plaintiff in this suit) said replevin bond be, and it was con-recovered any judgment whatever in demned as forfeited by reason of the said action of replevin, or that any re-default of Sims; that said bond should turn of the property sued for therein forthwith be put in suit at law to re-was ever adjudged to the plaintiff cover the value of said slave and her against Sims, and that he failed to rehire, and that Sims pay all the costs turn the same, or that auy sum or of the replevin and chancery suits ; sums of money whatever were recov-which decree remains in full force, ered against Sims by the said plaintiff in said replevin suit, and that Sims 395*] *&c. The value of the slave, failed to pay the same.
JAN. TERM, 1856. The court sustained the demurrer, and the plaintiff resting, final judgment was rendered in favor of defendant. Plaintiff brought error. The replevin bond sued on is conditioned according to the provi-396*] 5 sions of see. 11, chap. 136, Digest; and, is in form, a good statutory bond, as set out in the declaration. Before the defendant in an action of replevin, can maintain a suit upon the bond against the security, he must obtain some judgment in the action against the plaintiff, and an execution must be issued thereon, and returned unsatisfied, in whole or in part. Digest, chap. 136, secs. 11, 29, 30, 37, 38, 39, 40, 43, 44, 45, 46, 47, 51, 52; Cowden v. Pease, 10 Wend. Rep. 334; Cowden v. Stanton, 12 Wend. 120; Gould v. Warren, 3 Wend. 54. The provisions of the New York statute, on which these decisions were made, are similar to OUTS. In this case, the declaration shows no judgment whatever against Sims in favor of Cornish in the replevin suit. It was held, in the above cases, that the issuance and return of the execution were matters to bt proven, but need not be averred in the declaration. Be this as it may, it was clearly necessary to aver a judgment, &c. Keesee was not a party to the chancery suit, and his rights or liabilities were not affected thereby. If he had been a party the court could not have rendered any decree, enlarging or changing the conditions of the bond, so as to make him responsible otherwise, or upon other conditions than were stipulated by the terms of the obligation. Badlaw v. Tucker, 1 Pick. 285; Whitewell et al. v. Burnside, 1 Metcalf 39. The judgment of the court below is affirmed. Absent, Mr. Justice Scott.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.