
    George M’Michael v. David H. Gillispie.
    The surety in a sequestration bond cannot be made responsible for any injury to the property sequestered, prior to the date of the bond.
    Appeal from the District Court of Livingston, Jones, J.
   Martin, J.

The defendant is appellant from a judgment on a sequestration bond, which he executed as surety of Weathersby, in a suit brought by the present plaintiff against the latter. The defendant admitted his execution of the bond ; but averred, that the plaintiff had no claim on him, as no judgment was given against Weathersby, in the suit in which the property of the latter was sequestered; that there has been no breach of the condition of the bond ; that the property sequestered was, without any judgment obtained or any order of the court for the restoration of the property sequestered, resumed by the plaintiff, under an agreement between him and Weathersby, to which the present defendant was not a party; and that, from the date of the sequestration bond and the subsequent delivery of the property to Weathersby until the resumption of it by the plaintiff, it suffered no injury or deterioration.

In an amended answer, the defendant urged, that the plaintiff acquired no right by the sequestration, because the writ on which the property was sequestered was illegally issued, there having been no order of court therefor.

The sequestration bond bears date the 3d of October, 1838. Several witnesses were sworn, who proved the killing of several hogs, the death of several oxen, and the felling of a number of trees, from whose testimony the jury inferred that the property sustained damage to the amount of $400, for which the judgment appealed from was given.

The record shows that, in the month of October, 1839, a compromise was entered into by the plaintiff and Weathersby, which terminated without the participation of the present defendant, in the resumption of the sequestered property by the plaintiff, without any judgment having been obtained by the latter.

The counsel for the appellant has contended, that the plaintiff and appellee could only acquire a claim on his client by a judgment against Weathersby, in the suit in which the sequestration bond was given ; while the adverse counsel has urged, that after the. execution of the sequestration bond, the plaintiff acquired a claim for any injury or deterioration suffered by the property, inchoate, perhaps, and defeasible by a judgment in favor of Weathersby, but which became complete by the resumption of the property sequestered, with the consent of Weathersby. The conclusion to which we have come, as to the damages given by the jury, renders it useless to pronounce any opinion on the point on which the counsel of the parties differ.

Watterston, for the plaintiff.

Sheafe and Penn, for the appellant.

In their testimony in regard to the damage, not one of the witnesses shows any injury or deterioration, after the daté of the sequestration bond. It is clear, that the appellant cannot be responsible for any injury or deterioration, between the original possession of Weathersby, and his dispossession under the writ of sequestration. The only witnesses who, for any period, state the injury or deterioration, fix it in the spring of 1838, or the summer of that year; while the sequestration bond was given in the autumn, i. e., on the 3d of October, 1838. No part of the testimony enables us to discover any injury or deterioration after that date. The verdict of the jury was, consequently, erroneous.

It is, therefore, ordered and decreed, that the judgment be annulled and reversed; and that ours be for the defendant, with costs in both courts.  