Spivey v. McGehee

24 Ala. 476

• Court: Supreme Court of Alabama
• Decided: January 15, 1854
• Status: Published

Opinion

CHILTON, C. J.

The evidence is all set out in the bill of exceptions taken upon the trial, and the court charged the jury, in substance, that if they believed it all, they should find for the defendants. The question is, as to the legality of the charge, when considered in connection with the facts.

The condition of the bond, alleged in the declaration to have been broken, is, to prosecute “the bill and writ to effect, and, in the event the complainants fail therein, that they shall pay to the defendant all such costs and damages as he may sustain by the wrongful suing out of the said writ of ne ex-eat” &c.

Wo do not agree with the counsel for the defendant, that the condition is complied with by merely prosecuting the bill to effect. The complainants may have had a very good ground for equitable relief, arising out of their unsatisfied mortgage ; but it by no means follows, that there was any necessity for the writ of ne exeat. The condition was, therefore, very properly made to include both, and was broken if either was not prosecuted to effect, if the damages and costs consequent thereupon were not paid.

Upon looking, however, more narrowly into the record, we have concluded, against our first impression, that the record shows a compliance with the condition as to the prosecution of both the bill and writ to effect. The record no where shows that the writ of ne exeat was discharged. It is true, the person of the defendant was ordered to be released from the custody of the sheriff, upon his delivering over to the complainant the four slaves which he had in his possession, on the 11th of June, 1846, and which slaves the Chancellor very erroneously concluded were sufficient to satisfy the mortgage debt. But the facts, that he was required to surrender such slaves as the condition of his release from custody, and that the slaves so surrendered were sold, and the proceeds made available to satisfy, pro tanto, the mortgage debt, show that the writ was not made powerless by its discharge, but was made to accomplish a beneficial result to the complainants. At all events, it was made effectual to place the four slaves, which were sold, in the possession of the sheriff. Whether such an order was correct or not, is a question not before us, and consequently one upon which we express no opinion; all we now decide is, that the order found in the record, for the defendant’s release from custody under the writ, upon surrendering certain slaves, is not such a failure to prosecute the writ to effect, as entitled Spivey to maintain this action for damages, within the meaning of the condition of the bond.

Our opinion is, that, under the facts presented by the bill of exceptions, the charge of the court was proper ; and the judgment must be affirmed.