Opinion
(June Term, 1845.)
1. A man, under a decree of a court of equity directing certain slaves in his hands to be sequestered unless he gave bond, entered into a bond conditioned that the slaves (naming them) should not be removed away, but that they should be forthcoming upon the further order of the court. Among the negroes named was one who had been removed to Tennessee and sold three years before the bond was given or the decree made: Held, that the obligors in the bond were bound for the delivery of this negro as well as the others.
2. Held, further, that the condition of the bond was not broken until the court of equity made the order for the forthcoming of the slaves, notice thereof was given to the obligors, and then a failure to produce them.
APPEAL from WARREN, Spring Term, 1845; Dick, J.
William H. Haywood for plaintiff.
Badger for defendant.
Debt brought upon the bond of Thomas H. Christmas and the defendant's intestate, of which the following is a copy:
State of North Carolina} } ss. Warren County. }
Know all men by these presents, that we, Thomas H. Christmas and John Paschall, of the county aforesaid, are held and firmly bound unto Weldon Hall, clerk and master of the court of equity of the county aforesaid, in the just and full sum of six thousand dollars, current money of the State aforesaid, to be paid to the said Weldon Hall, clerk and master, his executors, administrators and assigns; for the true performance whereof we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents, sealed with our seals, and dated 9 October, 1833.
The condition of the above obligation is such, that, whereas, by virtue of a decree of the court of equity for said county, made in a suit therein pending between Leonidas Christmas and others, complainants, and Peter R. Davis and others, defendants, it is ordered, (669) "that the sheriff of Warren County forthwith take possession the negroes Cudge, Lucinda, Dilly, Dick, Little Summerset, a child of Mary, deceased, and their issue (if to be found in his county), late the property of Buckner Davis, deceased, together with the other personal goods of the said Buckner, which were left in the possession of Mrs. Betsey C. Christmas, for the support of herself and children, whenever the said negroes or any of the said goods shall be found in the county aforesaid, and that he proceed to hire out the said negroes until the first of January next, and sell the perishable goods, taking bonds for such hire or sales, payable to Peter R. Davis and Stephen Davis, and hold the same subject to the order of this court, taking care to provide for the safe return of the said negroes to the said sheriff, or his successors in office, on 1 January next: Provided, however, if Thomas H. Christmas will give bond with good security, to be approved by the said sheriff, made payable to the clerk and master of this court, in the penal sum of double the value of the said slaves and other goods, conditioned that said slaves and other goods shall not be removed away, but that they shall be forthcoming upon the further order of the court at the next or any succeeding term thereof, then and in that case the sheriff is directed to permit the said Thomas H. Christmas to retain possession of the said negroes and other property, as he now does, under the said Peter R. Davis and Stephen Davis, executors of Buckner Davis, deceased"; and whereas, the said Thomas H. Christmas is desirous to retain the possession of all the property aforesaid, and is willing to comply with the above written decree: Now, therefore, the condition of the above obligation is such, that if the above bound Thomas H. Christmas do well and truly comply with all and each of the requisitions in the above written decree, by safely keeping, not removing away, and holding the same subject to the order of the aforesaid court of equity at the next or any succeeding term thereof, the above obligation to be void, otherwise to remain in full force and virtue. (Signed and sealed by Thomas H. Christmas and John Paschall.)
The cause came on before the court upon the following case (670) agreed:
The plaintiff seeks to recover on account of the nonproduction, under the order hereinafter mentioned, of Little Summerset, Dilly and Sally. Little Summerset was a child of Ally, and not Mary, deceased, mentioned in the condition of the bond, and was sold by Thomas Christmas as early as 1830, to one Richard Christmas, of Tennessee, and has not since been in North Carolina. He was sold for the sum of $250, which the parties admit to be his value. Dilly was sold by the said Thomas H. Christmas in 1833, (after the order of the court of equity mentioned in the said condition, and after the issuing and delivery to the sheriff of the process founded on the order) to some one beyond the State for $300, which is admitted to be her value, and has not been brought back. Sally was a child of the said Mary, and was sold by the said Thomas H. Christmas, in 1836, and was at the time of the sale of the value of $600. The sale was to some one beyond the limits of the State, and she has never been brought back. At December Term, 1839, the Supreme Court (to which the cause referred to in the said condition had been transferred, and in which the same was then pending) made the following order:
"On hearing the affidavits of Peter R. Davis and Joseph S. Jones, now here filed, and on motion of the plaintiffs, it is ordered by the court that Thomas H. Christmas (the father, and formerly the next friend of the plaintiffs) do, immediately after notice of this order, deliver or cause to be delivered to the sheriff of Warren County, or to John H. Hawkins, the plaintiff's next friend, all the negro slaves and other property mentioned or referred to in the condition of a bond, dated 9 November, 1833, and given by the said Christmas and one John Paschall, as his surety, under an order made in this cause at October Term, 1833, of the court of equity of Warren; and on the failure of said Christmas to cause the said slaves, their issue, and the said other property to be delivered accordingly, it is ordered that the said bond be delivered out to the next friend of the plaintiff's, to be put in (671) suit." Notice of this order was duly given to the parties, but neither of the three negroes before mentioned was delivered to the sheriff or to John H. Hawkins, or to any other person for his use. At the time this order was made the negro Dilly was worth $500. It is admitted that the defendant has fully administered, except as to the sum of $1,067, which he has subject to the plaintiff's demand.
It is submitted to the court, whether the plaintiff is entitled to recover for, or on account of the nondelivery of the said three negro slaves or either of them; and whether, if he is entitled as to them or either of them, he is entitled to interest upon their values, and if so, whether from the time of sale, the issuing of the process, the giving of the bond, or the making of the order in the Supreme Court; and as to the negro Sally, whether her value is to be taken as of the time of the sale, or of the said order; and judgment to be entered according to the opinion of the court.
On consideration of this case his Honor was of opinion that the plaintiff was entitled to recover damages for the negroes Summerset, Dilly and Sally, the value of the latter to be taken as of the time of the sale, with interest from the time of the order in the Supreme Court. Judgment being rendered accordingly, both the defendant and the plaintiff appealed to the Supreme Court.
First. We are of the opinion that the slave called Little Summerset was not intended by the parties to the bond to be described as "a child of Mary deceased," but that he stands in the condition of the said instrument as one among many slaves therein mentioned, without any other description than his own name. The punctuation of the comma, at the termination of his name in the original bond, (which is made a part of the case), is in our opinion, conclusive evidence of the correctness of this construction. And we also think that the words, "a child of Mary deceased," follow next after the said (672) comma, describes another slave, whose name was unknown to the parties, but it was "a child of Mary deceased." That child of Mary deceased was proven on the trial to be named Sally. And we think that she was one of the slaves described in the condition of the bond sued on in this action.
Second. Little Summerset had been sold by T. H. Christmas as early as 1830, (the bond was dated in November, 1833,) to a man in Tennessee; and he has not been in Warren County since. The defendant insisted that Paschall, his intestate, did not covenant that Christmas would hold him, Summerset, subject to the order of the court; but that he covenanted for the surrender of those slaves only which then were in the county, and which the sheriff under his writ of sequestration could have seized, in case no bond had been given by Christmas. When we examine the condition of the bond, we see that it recites the order which had been made by the court of equity, which order commanded the sheriff of Warren forthwith to take into his possession the slaves, Little Summerset and others, wherever the said negroes, or any of them should be found in his county: Provided, however, that if Thomas H. Christmas will give to him a bond with security, made payable to the clerk and master, conditioned that the said slaves shall not be removed away, but that they shall be forthcoming upon the further order of the court, then the sheriff is to permit T. H. Christmas to retain said negroes. The bond in its condition recites that Christmas was desirous to retain the possession of all the property aforesaid, and is willing to comply with the above decree. It then proceeds as follows: "that if Thomas H. Christmas do well and truly comply with all and each of the requisitions in the above written decree, by safely keeping, not removing away, and holding the same (property), subject to the order of the court at the next term, etc., then the said obligation to be void." The decree certainly commanded the sheriff to take into his possession Little Summerset and all the other property, and have him and it forthcoming at the next term of the court, unless Christmas would give bond conditioned that the said slaves (Summerset and others) should not be removed away, but that (673) they should be forthcoming upon the further order of the court. The sheriff did not seize any of the property under the writ of sequestration. When Christmas was notified of the decree he executed the bond, well knowing that Little Summerset was one of the slaves named in the decree to be forthcoming when the court should demand him, and he makes no reservation in the bond as to him. The obligation, we think, covers Little Summerset and all the property mentioned in the decree, and not that only which was within reach of the sheriff.
Third. We concur with his Honor that the conditions in the bond were not broken until the court of equity made the order for the forthcoming of said slaves and notice thereof given to the obligors, and then a failure to produce them. And also that the said slaves should be valued as of that date, with interest on that sum to the rendition of the judgment as damages. It is not stated that the slave Sally was of greater or less value, at the time of the breach of the bond, than she was at the time of her sale; therefore that valuation, being directed by the court, is not a cause for new trial.
PER CURIAM. Judgment for plaintiff accordingly.
(674)