
    Winsor vs. Orcutt, Wood and Baxter. The Same vs. Orcutt, Wood and Westover.
    A suit in chancery, to set aside a release given by the nominal plaintiff in an actioir at law, of the right of action upon a bond which was the foundation of such action, is a suit concerning property, within the meaning of the provision of the revised statutes requiring the court of chancery to dismiss suits in that court, concerning property, where the amount in controversy does not exceed one hundred dollars.
    In an action upon an attachment bond, the plaintiff is bound to show that he has sustained some damages by reason of the attachment. He is not entitled to recover, in such action, upon the mere fact that the plaintiff in the suit before the justice did not succeed in that suit.
    These cases came, before the chancellor upon appeals from decrees of the vice chancellor of the fifth circuit, dismissing the complainant’s bills against the defendants respectively, with costs, upon the ground that the amount in controversy in each suit, exclusive of costs, did not exceed $ 100.
    
      
      A. J. Parker, for the appellant.
    
      H. Van Derlyn, for the respondents.
   The Chancellor.

The vice chancellor was unquestionably right in supposing that these were suits concerning property, within the provision of the revised statutes in relation to the jurisdiction of this court. The object of each suit was to set aside a release, given by one of the nominal plaintiffs, in an action at law upon a bond. The rights of action, if any existed, upon the bonds in question in the suits at law, were choses in action, and were property. And the suits in this court, to set aside the releases of such choses in action, were suits concerning property; as contradistinguished from suits for divorces, or other mere personal rights.

The bills do not show what amount the complainant claimed' to be due for damages upon the attachment bonds, or that he had in fact sustained any damage by reason of the attachments, or that costs were awarded upon the quashing of the proceedings before the justice, or that any property belonging to the complainant had been attached, so as to give him any right of action whatever upon the bonds. The bills merely state that suits, by attachment, were commenced, and bonds were given, and that ihe constable levied on certain property as the individual property of Winsor; not that the property levied on was in fact his property, or was in his possession. And the complainant then states the commencement of the suits, in the supreme court, by declaration, for the purpose of collecting the amount of damage. which Winsor had sustained by reason of the commencement of the attachment suits, and the proceedings thereon; but without stating what such damages were, or how they had arisen, or whether the declarations in the supreme court showed any right of action whatever. The complainant, therefore, appears to have proceeded upon the supposition that the defendant in an attachment suit is entitled, of course, to recover some damages, upon the bond, if the plaintiff fails to recover judgment against him. The condition of the bond, however, is not, that the plaintiff shall succeed in obtaining judgment'; so as to entitle the defendant to nominal damages, at least, in case the plaintiff fails in the suit, although he pays the costs, if any, which are awarded against him; but the condition of the attachment bond is only to pay the damages Which the defendant may sustain by reason of the attachment. To show a right of action upon the bond, therefore, the complainant must aver that he has sustained damage by reason of the attachment, and must state the manner in which such damage has arisén. Ór if costs were incurred, or were awarded to him, he must aver that such costs have not been paid; so as to constitute a breach of the condition óf the bond.

The bills in both cases are fatally defective íri these respects; as they do not show any right of action on either ‘Of the bonds, or that the conditions of the bonds had not been fully .complied with when the actions in the supreme court Were 'commenced upon such bonds. The complainant, therefore, was not entitled to deorees in his favor, upon these bills, even if the defendants failed to support the affirmative allegation, in their answer in these suits respectively, that the amount in controversy, was less than $100.

I am inclined 'to think, however, that the proofs showed that •the.amount in controversy could not exceed $100 in each suit, if any recovery whatever could be had upon the bonds, ch the facts proved. It appears, by the proofs, that the property attached did not belong to the complainant, and that it was hot taken out of his possession. Mere formal levies upon the property were made, by the constable; and the real Owners of "such property were present and claimed it, and gave bond's therefor to the constable, who suffered it to remain undisturbed. Win-sor appeared, upon the return of the attachments, and pleaded, in abatement, that the property attached was not his'; and succeeded in getting the attachments dismissed upon that ground. And the plaintiff in the attachment suits thereupon paid the -whole of the complainants’ costs in both suits. Even if nominal damages, therefore, could have been recovered upon the bonds, which were in the penalties of $200, so as to entitle the plairitíff to costs in the actions at law, according to the fee bill of 1840, the costs of both parties in the action, upon a mere joining of the issue, could not, at the extent, have exceeded sixty or seventy dollars. And the amount of damages to which the complainant was entitled upon the bond, and the costs of both parties in the action on the bond, was all that constituted the amount in controversy. In any view of the cases, therefore, the vice chancellor was bound to dismiss the bills; and I think he was right in dismissing them with costs.

The decrees appealed from must, therefore, be affirmed, with costs.  