Wright v. Oakey, Hawkins & Co.

Merrick, C. J. This suit is the sequel to the case of Wright v. White, decided in this Court, term before the last. In that case judgment was entered in favor of plaintiff against White , with previlege upon the property attached. This property had been delivered to Oakey, Hawkins & Co., intervenors, upon their giving bond, with defendant John D. Rein, as surety. An execution issued upon that judgment, and was returned, no property found after demand of Stansbury, (attorney for absent defendant), Hawkins R. Mott, attorney for intervenor and attorney for plaintiff. This suit is instituted upon the bond of Oakey, Hawkins S Co., principals, and John D. Bain, security, as forfeited. The defendants excepted to the petition on the grounds : 1st. “ That they had been sued by Mrs. White et als., for the cotton attached, that they had called plaintiff in warranty, and the rights of all parties should be tried and decided in that suit.” 2d. “ That if this suit is allowed, they are in danger of being compelled to pay the proceeds of the cotton twice, and besides lose the money advanced on it.” 3d. “ Because the present proceeding is oppressive and unjust.” [126] “ The exception was overruled. The defendants then plead a general denial, and especially, liability on the obligation sued on. Judgment was entered for plaintiffs for the amount of proceeds of the cotton and interest, and the defendants appealed.’.’ Where the defendant in attachment bonds the property, it is upon condition that he and his surety will satisfy such judgment as may be rendered against him in the suit pending. The courts by analogy have extended this provision to third .parties where property has been seized in their possession; and they are permitted to bond on the same condition. When the defendant releases the property on bond he undertakes to make successful defence to the action, and if he fail, his liability upon the bond becomes irrevocably fixed by the final judgment. So, too, with the intervenor : he undertakes to justify the delivery of the property to himself in the suit to which he has voluntarily made himself a party, and it behooves him to consider whether he be able to maintain himself in such controversy. He assumes by his intervention that he is the agent of the true owner, and that he has the right to intervene on account of the property. If he fail, he becomes responsible upon his bond and he cannot be permitted to litigate the action again upon other issues. There must be an end to the controversy. Whatever has been said in the case in 2 Rob. 611, contrary to the above conclusion, is overruled. See Kendall v. Brown, 7 An. 688. Judgment affirmed.