Sterling City Gold & Silver Mining & Tunneling Co. v. Cock
| Decision Date | 01 February 1873 |
| Citation | 2 Colo. 24 |
| Parties | THE STERLING CITY GOLD AND SILVER MINING AND TUNNELING COMPANY v. COCK et al. |
| Court | Colorado Supreme Court |
On a bond with condition as prescribed by the statute, an action may be maintained for the costs adjudged against plaintiff in attachment in the attachment suit, but not if the condition respecting the payment of costs has been omitted from the bond.
Error to District Court, Arapahoe County.
DEBT upon an attachment bond, the condition of which was as follows:
The condition of this obligation is such, that whereas the above bounden George E. Cock has, on the day and date hereof prayed an attachment out of the district court of the first judicial district of Colorado territory, in and for the county of Arapahoe, at the suit of George E. Cock, George Richardson, John Y. Scamman, John Finn and others, doing business as Butterfield Overland Dispatch Company, against the estate of the named Sterling City Gold and Silver Mining and Tunneling Company, for the sum of $5,902.27, and the same being about to be sued out of said court, returnable on the 5th day of October next to a term of the court then to be holden; now, if the said Butterfield Overland Dispatch Company shall prosecute their suit with effect, or, in case of failure therein, shall well and truly pay and satisfy the said Sterling City Gold and Silver Mining and Tunneling Company all such damages as shall be awarded against the said Butterfield Overland Dispatch Company, their heirs, executors or administrators, in any suit or suits which may hereafter be brought, for the wrongfully suing out the said attachment and all damages which may accrue to the said Sterling City Gold and Silver Mining and Tunneling Company, by reason of any excessive levy made under any writ of attachment issued in this cause, then the above obligation to be void otherwise to remain in full force and effect.
Messrs. BROWNE & PUTNAM, for plaintiff in error.
Mr. B. M. HUGHES, for defendant in error.
This was an action of debt brought in the Arapahoe district court, on an attachment bond executed by George Cock as principal, and John Hughes as security. The defendants below demurred to the declaration, on the ground that it was not averred that any damages had been awarded against the plaintiffs in said attachment in any suit brought for the wrongful suing out of the attachment, according to the condition of the bond.
It will be seen, from this statement of the case, that the only question to be considered is, whether an action can be maintained on an attachment bond, against the principal and sureties, before a recovery of damages in a separate suit against the plaintiff in the attachment. The language of the statute on this subject is as follows:
'Now if the said _____ shall prosecute his suit with effect, or in case of failure therein, shall well and truly pay and satisfy the said _____ all such costs in said suit, and such damages as shall be awarded against the said _____, his heirs, executors...
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Buggeln v. Cameron
... ... v. Ferguson, 18 Ark. 347; Sterling City etc. Co. v ... Cock, 2 Colo. 24; Sledge ... 404; Henrietta Mining & Milling Co. v. Gardner, 173 ... U.S. 123-130, ... ...
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Newman v. People
...bond until after the amount of the principal's liability had been determined." In support of this contention we are cited to Sterling City Co. v. Cock, 2 Colo. 24; Sterling City v. Hughes, 3 Colo. 229; Brandt, Sur.§ 494. The two Colorado cases were suits upon attachment bonds, in which the ......
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Mattler v. Brind
...the damages must be first recovered in a distinct action. This is believed not to be requisite." At the time of the decision of Mining Co. v. Cock, supra, common-law practice, as has been shown, the courts of many, if not a majority, of the states held the action maintainable. Since that ti......
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