Cooper v. Newell , 36 Miss. 316 ( 1858 )

Handy, J.,

delivered the opinion of the court.

This was a bill in chancery, filed by the appellee under the following circumstances:—

A writ of replevin had been sued out by one Elias Newell, against the appellee and D. S. Newell, for certain slaves in their possession. The writ was executed, and the appellee and D. S. Newell retained possession of the slaves, by executing a bond, according to the statute, conditioned to deliver them according to the judgment of the court, in case the suit should be decided against them. Pending this suit, the appellant recovered a judgment for the sum of $423 against Elias Newell, the plaintiff in the action of replevin, and execution issued thereon, which was levied upon one of the slaves involved in that suit, as the property of Elias Newell. •

The bill states that the appellee would be greatly damaged by the sale of the slave levied upon, before the determination of the action of replevin, and prays an injunction restraining the sale under the execution, during the pendency of the action of replevin.

The appellant filed a demurrer to this bill, which was overruled, and from that decree this appeal is taken.

It is objected that the bill is insufficient, because it does not allege that the complainant is the owner of the property.

But it shows that he was in lawful possession of the slaves, and was bound to have them forthcoming, in the event that the action of replevin should be decided against him. In this condition of the slaves, they must be considered as in custody of the law, and not subject to be taken from the complainant’s possession, under an execution against the plaintiff in the action of replevin. Such an interference with the course of the law, would be. productive of confusion, and is not to be indulged. But, in addition to this, it deprived him of the power to keep the property, and to have it ready to be delivered, according to the exigency of the action in replevin, as he was bound to do by his bond. If the result of that action should be that he was entitled to the slaves, and that they were not the property of the plaintiif in the action, he had a clear right to have the sale of them by the execution enjoined; and if they should be adjudged in the action to be the property of the plaintiff, he was entitled to protection in his possession, in order that he might perform his legal obligation to have them forthcoming to answer the judgment, and might not be placed in the hazardous condition of being compelled to suffer a breach of his bond.

It is, however, said, that the complainant’s remedy was ample at law, by setting up his claim for the trial of the right of property, under the statute. But such a proceeding is liable to serious objections, under the circumstances of the case. It would have involved the same question upon which the action of replevin depended, to wit, whether the slaves were the property of the plaintiff in reple-vin, as whose property they were levied upon under the execution, thus creating two suits, depending upon the same question, which is against the policy of the law; and yet, if the claimant prevailed in the trial of the right of property, the judgment would not settle the right of the defendants in the action of replevin. And if the claim of property should be decided against him, the slaves would be taken from his possession, and he be subjected to the hazard arising from the breach of his bond.

These difficulties do not exist with reference to the remedy by injunction. The plaintiff in execution is restrained from proceeding against the property, until the decision of the question of title in the replevin suit. If it be decided in favor of the defendant in the action, there is an end of the matter, as to the right of the plaintiff in execution to subject it to his debt; and if it be decided to be the property of the plaintiff in replevin, the plaintiff in execution may proceed to subject it; and thus all embarrassment and damage may be obviated.

But upon another ground the bill should be maintained. The complainant, having possession of the slaves under a claim of title and ownership, which must be presumed from the facts stated in the bill, was entitled to protection by injunction, against the sale of them, as his property, in which light they are to be regarded, according to the allegations of this bill. And the jurisdiction of equity in such cases is fully settled. The injunction, therefore, is not only a protection to the rights of the complainant, but also of those of the plaintiff in the action of replevin. For it prevents the sale of the slaves, which, if sold in the state of doubt as to the title, arising from the claims of the parties to that suit, could scarcely fail to be sacrificed, and thus cause an injury to the plaintiff, if he proved to be the owner, by the sacrifice of his property, or great damage to the complainant, if they should be adjudged to belong to him.

We therefore consider the case a clear one for relief by injunction, and that the decree overruling the demurrer is correct.

Decree affirmed.