Blakey v. Blakey
| Decision Date | 14 November 1834 |
| Parties | Pleasant and Robert Blakey, for use of Pleasant Blakey v. Thomas Blakey and James Gilmour. |
| Court | Kentucky Court of Appeals |
FROM THE CIRCUIT COURT FOR CHRISTIAN COUNTY.
Messrs Morehead and Brown for Appellants.
Mr Crittenden for Appellees.
Statement of the facts and pleadings.
Pleasant and Robert Blakey, having instituted a suit in chancery against Thomas Blakey, obtained a restraining order enjoining the removal without the jurisdiction of the court of certain slaves in the bill mentioned, and requiring the execution of bond, with security, to have them forthcoming, to abide the decree.
Thomas Blackey gave the bond as required. In the body of the bond, Thomas Blakey and John Clark are named as the obligors, but there is no mention of Gilmour. At the foot of the bond, however, there are three seals, and the name of Gilmour is set opposite the last, as an obligor.
This is an action of covenant, founded on the bond thus executed, instituted in the names of Pleasant and Robert Blakey, for the use of Pleasant, against Thomas Blakey and Gilmour, as surviving obligors.
The defendants filed various pleas. The cause went off upon demurrers to replications, filed to the first, third and fifth pleas.
The first and third pleas, in substance, rely upon a release executed on the 22nd March, 1832, by Robert Blakey, releasing the defendants from liability on their bond.
The fifth plea, as matter of defence, avers that Robert Blakey dismissed the chancery suit in the declaration mentioned, and had obtained no decree for any part of the slaves, or their value; and that one-third of the value of said slaves was, in said suit, decreed to Thomas Blakey.
The replications filed to the first and third pleas, attempt to avoid the effect of the release, by averring, in substance, that Robert Blakey, before the execution of the release, towit, on the 7th of April, 1825, by a written instrument, transferred all his interest to William Davenport; that the suit progressed, and the court rendered a decree in favor of said Davenport, for said Robert's interest--which decree is proffered to the court; and that said Robert, at the time of making the release, was suing for the use of said Davenport--consequently, had no right to make the release, and therefore the same was fraudulent and void. The replication to the fifth plea avers, that, before Robert Blakey dismissed the chancery suit, he transferred all his interest amounting to one-third of the slaves, to William Davenport, by a written instrument; that the suit in chancery, continued, in the name of Pleasant Blakey, for the use of said Pleasant and said Davenport, and that a decree was rendered in their favor, severally, for two-thirds of the slaves.
A bond is executed, the object and condition of which are to secure the respective rights of the several obligees, as they shall be ascertained by a chancery suit--as the forthcoming of slaves in which each one claims an interest; it is not competent for one of the obligees to make a release which shall affect the rights of the others; and the release of one, who had no interest, or had transferred his interest, so that nothing was awarded to him by the decree, is void. A plea, to an action on the bond, setting up a release by such obligee, is a departure, and the issue, whether of the law or fact, immaterial.
We are of opinion, that the whole of said pleas and replications are irrelevant, and a departure from the true cause of action as set out in the declaration. The issues formed thereon, whether of law, or fact, were immaterial.
The condition of the bond is, to hold the slaves, " subject to any order or decree of the court, and within reach of its process." The decree was rendered in October, 1828 directing the sale of the slaves, and an equal...
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