Sugg v. Burgess , 2 Stew. 509 ( 1830 )

By JUDGE WHITE.

The Circuit Judge sustained 'the demurrer to the plaintiff’s declaration, and refused to permit the proposed amendment; the only error necessary to be noticed, is that of sustaining the demurrer. Sugg, the plaintiff, declares for $990, due as the aggregate penalty of nine bonds given to a constable for the delivery of the property levied on; he sets out the making of the bonds, the condition, and for breach, that the negro was not delivered, nor the debts paid. This declaration, to my view, contains all substantial requisites. From the recitals in the conditions of the bonds as set out, it appears the plaintiff had placed nine different executions in the hands of one Ira Olive, a constable, which had been Issued on his behalf, against a certain Richard Burgess, which executions being levied on the slave mentioned as the property of said Burgess, he, together with Benjamin Burgess and James Davis, as his securities, executed the bonds sued on, as forthcoming or delivery bonds. These bonds, from the description given in the declaration, were of the ordinary kind, given for a valuable consideration, and a purpose expressly authorized by law; and the plaintiff, instead of suing on each separately, has, to save costs to the defendants, as he might well do, united them all in one action. If, however, the bonds were not taken in strict pursuance of the statute, this would only prevent the plaintiff from proceeding on them in the summary mode, by motion, and could by no means affect his remedy by suit at common law. Had they even been taken to the officer instead of the plaintiff, this could have been done, as appears from various decisions of the Virginia Courts, where there are statutes similar to our own.^c The Court, therefore, erred in sustaining the demurrer to the declara- , tion, for which the judgment must be reversed, and the cause remanded.

Judge Taylor not sitting,

c 1 Wash. R. 367. 3 Calf* 454.