Warfield v. Davis
| Decision Date | 01 January 1853 |
| Parties | Warfield <I>vs.</I> Davis. |
| Court | Kentucky Court of Appeals |
Whether a court of common law has the power or not, to make an order in a suit for freedom, directing the sheriff to hire the plaintiff out, unless the person claiming him as a slave, shall execute a bond with security, conditioned to have him forthcoming at a subsequent term of the court, and in the mean time not to sell or dispose of him, or send him out of the commonwealth; we have no doubt, that if such a bond be executed, it is according to numerous decisions upon the subject, valid and obligatory as a common law bond. The bond is executed voluntarily, the claimant having his option to execute it or not. It has a sufficient consideration to sustain it, and is not immoral in its tendency, or inconsistent with the policy of the law. It is just such a bond as the chancellor has an undoubted right to require in similar cases, and is frequently necessary to secure to the plaintiff the full benefit of a judgment in his favor, in the suit which he is prosecuting to establish his freedom. We think, therefore, the plaintiff had a right to maintain this action on the bond, whether the common law judge had the power to make the order under which it was executed or not.
We are also of the opinion, that Warfield is bound by the judgment which the plaintiff obtained against Tingle, in the suit brought by him to establish his right to freedom. Tingle was Warfield's agent, and had the plaintiff in his possession in that capacity, when the suit was instituted, and it is perfectly evident that Warfield not only knew of the pendency of the suit, but acted, and was regarded by the court as the real party in interest in defending it. His privity, therefore, is sufficiently established, and he is as much bound by the judgment as if he had been a defendant in the suit. The most important question in the case however, is as to criterion, by which the plaintiff's right of recovery upon the bond is to be regulated and governed. On the the part of the defendant it is contended, that the only breach of the bond, was the failure to have the plaintiff forthcoming at the May term, 1846, of the Mason circuit court, and that he sustained no real injury by that failure, and is consequently only entitled to nominal damages in this action. It is contended on the other side, that for this failure, the plaintiff, who has established his freedom, has a right to recover hires for all the time he was retained by the obligor in his possession, after...
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