Savin v. Bond

Baktol, C. J., delivered the opinion of the Court. The facts of this case are as follows : Savin, the appellant, distrained the goods of John Bond for rent, Bond sued out a writ of replevin from a justice of the peace, and executed a replevin hond with J. Jesse Moore as surety in the penal sum of §150. The justice of the peace rendered a judgment in the replevin suit in favor of Bond, the plaintiff, Savin, appealed, and the Circuit Court for Washington County reversed the judgment of the justice of the peace, and rendered a judgment in favor of Savin, de retorno habendo of the property, valued at §75 and costs. On the 17th day of September 1877, Savin the appellant instituted this suit on the replevin bond against Bond and Moore.

Five pleas were filed by the defendants, which need not he particularly stated, as by the agreement of the parties, all errors in pleading were waived. The plaintiff having proved the execution of the hond, and that the appraised value of the property mentioned in the recital of the hond, and which had been taken in the distress proceedings therein referred to, was $74.85, rested his case. Whereupon the defendants to support the issues on their part joined, read in evidence the record of proceedings in the Supreme Court of the District of Columbia, which record at length is omitted by consent, and the •following statement of facts in lieu thereof, is taken and accepted, to wit: On the 26th day of May 1877, the Chesapeake and Ohio Canal Company, commenced an action by way of foreign attachment against Savin, the appellant, in the Supreme Court of the District of Columbia, claiming the ²³⁰ sum of $143.75, to be due it from tbe said Savin. Process was issued against Savin, and was returned “cannot be found.” On tbe same day, a writ of attachment was also issued, to affect the rights and credits of Savin, in the hands of the garnishees.

The writ, together with interrogatories, was duly served on Bond and Moore on the same day. On the 6th day of June 1877, Moore filed his answer to the writ and interrogatories, and confessed his indebtedness to Savin in the sum of $94.34, adding “I being security on replevin bond for John Bond for said amount, P. O. Savin distrained John Bond's property for rent; said Bond replevied his goods, and P. C.-Savin appealed to Court, and there had a decision in his favor.” And on the same day, (June 6- 1877,) John Bond, the other garnishee, also filed his answer thereto, stating “ I am indebted to P. C. Savin in the sum of $94.34.” On the 31st day of December 1877, the following judgment was entered by said Court: “ It appearing to tbe Court, that though the defendant was duly notified of the pendency of this suit by publication, he has not entered his appearance therein. And it appearing that the defendant is indebted to the plaintiff in the sum of $143.75, with interest from 15th November 1876, besides costs. And it. appearing by the answer of the said garnishee Bond, that he is indebted to the said defendant in the sum of $94.35, and no cause having been shown to the contrary : It is considered by the Court, that said sum of $94.35 of the defendant’s, so attached hy the Marshal as aforesaid, be and the same is hereby condemned in the hands of said garnishees, towards the satisfaction of the plaintiff’s above demand and costs ; and that the plaintiff have execution thereof against the said garnishee, which said judgment was duly entered, according to the rules of said Court.” The following statement of facts was agreed upon, as if they were given in evidence hy competent testimony. ²³¹ “ That the money for which Bond, confessed judgment of condemnation, as per record from District of Columbia, offered in evidence by defendants, was money which was payable hv Bond to said Savin, as appears by papers in Ño. 6 appeals, March T. 1811, which are to be admitted in evidence to show value of property seized by the distress, and for all other purposes pertinent to the trial of this cause; that at the time of said judgment of condemnation, confessed by Bond as aforesaid, the Canal Company was indebted to Bond as an employé, (subject to exception by the plaintiff as to its admissibility,) and that the Canal Company retained from the wages and pay of Bond, with his consent, enough to pay said judgment of condemnation and costs; it is admitted that the defendant can prove that the debt sued for in this action, is the same debt or credit that was seized in the attachment proceeding; and, if the Court shall regard this offer as admissible and competent in this