Hunter's Syndics v. Hunter

Mathews, J. delivered the opinion of the court. In this case, the plaintiffs claim the penalty of a bond entered into by the defendants, with a condition to be void, if G. H. Hunter, one of the obligors, should have a certain negro (in relation to which the bond was made) or his value forthcoming, to answer any judgment which might be rendered in the district court, in a suit then pending, which had been brought by Hunter's syndics vs. Hunter & Marshal; wherein it was afterwards [2] decreed, that the negro Tom, mentioned in the plaintiffs' petition, should be delivered over to said plaintiff. This judgment was rendered on the 7th of November, 1821, and the evidence, in the present case, shews that a copy of it was served on both the defendants, on the 17th of the same month. It does not appear that the negro was demanded from Hunter, or any other step taken against him, except giving notice of the judgment. On notifying said judgment to Bennet, he shewed complete willingness to have it complied with; and the delay which succeeded in delivering over the slave to the sheriff, in discharge of the condition of the bond, seems to have arisen more from the want of perseverance in that affair, than from any want of promptitude on the part of the defendants to comply with the obligation. When we add to this that no demand of the slave was ever made on Hunter, who had him in possession, it does appear to us that there has not been such delay by the defendants, in performing the condition of their bond, as to cause them to have incurred its penalty. There is something apparently anomalous [3] in the jury having found a verdict of non-suit: but as the judgment of the judge a quo, is in accordance with our ideas of the justice of the case, Hoffman for the plaintiffs, Hennen for the defendants. It is therefore ordered, adjudged and decreed, that said judgment be affirmed with costs. Post, 5.