Myers v. . Credle

Decided June 5, 1869

Supreme Court of North Carolina · decided 1869-06-05

Replevin, tried before Jones, J*. at Spring Term 1869 of tbe Superior Court of Beaufort. At tbe time when tbe writ was served upon tbe defendant Credle, tbe schooner, tbe subject of tbe suit was in tbe possession of Respass, a Constable, wbo bad seized it by virtue of an execution; and Credle refused to give bond.

Decided 1869-06-05

Reade, J.

¶1 I. Tbe plaintiff cannot recover against tbe defendant Credle, because at tbe time' the writ was issued be was not in possession of tbe property, and did not have tbe control of the same, Rev. Code, ch., 98, sec. 1.

¶2 II. The plaintiff cannot recover agaist Selby and Lupton, because they are not parties to tbe suit Tbe fact that tbe plaintiff surrendered the property to them upon their entering into bond “to perform tbe final judgment in tbe suit” did not make them parties^ Whether" there is any remedy against them upon their bond, in some other proceeding against them, is not before us.

¶3 *506 There is no error. There will be judgment here for defendant.

¶4 PER Curiam. Judgment affirmed.