Holcomb v. Foxworth

Fisher, J., delivered the opinion of the court. This was an action of debt, brought in the Circuit Court of Marion county, upon two attachment bonds executed by Allen Barnes as principal, and others as his securities. The defendants below demurred to the declaration,’ on the ground that it was not averred that a judgment had been recovered by the plaintiff against the principal for damages occasioned by wrongfully suing out the attachments, or that he had failed to pay such damages. The court below sustained the demurrer, and from this judgment this writ of error has been prosecuted. It will be seen, from this statement of the case, that the only question to be considered is, whether a joint action can be maintained on an attachment bond against the principal and sureties before a recovery of damages in a separate suit against the principal. The language of the statute on this subject is as follows : “ Now, if the said --■ shall prosecute his said suit with effect, or in case he fail therein, shall well and truly pay and satisfy the said-all such costs and damages as shall be awarded against him, his heirs, &c., in any suit which may be hereafter brought for wrongfully suing out the said attachment, then the above obligation to be void,” &c. Hutch. Code, 804. This language does not admit of construction. Its plain meaning is, that the suit shall be brought in the first instance against the principal in the bond, and that an action can only be maintained thereon in the event of a failure by him to pay the costs and damages recovered in such separate suit. Judgment affirmed.