Collins v. Hough

Richardson, Judge,

delivered the opinion of the court.

Collins commenced an action in 1852 against Hough under the 8th article (claim and delivery of personal property) of the practice act of 1849, to recover the possession of a negro woman. Upon filing the necessary affidavit an order was made on the defendant requiring him to deliver the slave to the sheriff, and thereupon the plaintiff executed the bond required by the third section and received the possession of the slave. At the November term, 1855, the plaintiff failed to appear and prosecute the suit, and thereupon a jury was *152 called, who assessed the value of the slave at five hundred dollars, and the damages for the taking and detention of her at one hundred and eighty dollars, upon which verdict the court rendered judgment against the plaintiff and his securities, that they return the slave to the defendant or pay the said sum of five hundred dollars, and that the defendant recover of the plaintiff and his securities double the damages assessed by the jury. This judgment was rendered without notice to the sureties.

The question presented here is, whether, as against the sureties, the 9th section of the 8th article of the act of 1849 provides the exclusive statutory remedy, or is only cumulative and concurrent with the 9th section of the replevin act of 1845. It is very evident that the 8th article does not furnish the machinery necessary to execute itself. It fails to provide the form or character of the judgment, or to indicate how the action shall proceed, and the whole remedy contemplated by the act would fail without the authority to borrow from another statute the means to perfect it. The act of 1849 assumed that contingencies would arise for which it did not provide, and therefore permitted a resort to the former system of practice. The 4th section of the 30th article declares that “ all statutory provisions inconsistent with this act are repealed,” but provides in another clause that “ if a case shall arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, can not be had under this act, the practice now in use may be adopted so far as may be necessary to prevent a failure of justice.”

As a general rule the plaintiff may dismiss his suit at any time before the cause is submitted to the court or jury, but he can not retreat at pleasure in an action when he has obtained from the defendant the possession of the property claimed; and therefore, as to the plaintiff, the 8th and 9th sections of the act of 1845 should be employed as a necessary means of carrying out proceedings initiated under the act of 1849, and, as an incident to the judgment, the 10th, lltli and *153 12th sections of the old law should also be considered in force. But the act of 1849, as far as it goes, must control, and the former practice can only be brought to its aid “ so far as may be necessary to prevent a failure of justice.”

The undertaking of the sureties can not be extended beyond the conditions of the bond prescribed by the third section. They do not engage to pay any penalties in the nature of double damages or otherwise, but they only undertake that the plaintiff will prosecute the action, return the property to the defendant, if return thereof be adjudged, and pay such sum as may, for any cause growing out of the order in the cause, be recovered against the plaintiff; and as the ninth section of the act of 1849 presents a remedy for a breach of the bond, it is the exclusive summary remedy, and is the only remedy against the sureties, except the common law action on the bond, which exists without the statute.

The subject is embarrassing and our conclusion is stated with hesitation; for whilst it is manifest that some portion of the old system was continued in force, it is difficult to say how much of it must be incorporated in the new. It is presumed, however, that but few questions like this can arise, for the revised act of 1855 undertakes to cover the whole ground and to present a complete system.

Judge Scott concurring,

the judgment will be reversed and the cause remanded.