Bierce v. Waterhouse
This was an action for breach of the condition of a redelivery or return bond executed by the defendant to a certain replevin suit instituted in a circuit court for the territory of Hawaii. The bond was in these words:

Circuit Court, Third Circuit, Territory of Hawaii.

$1 stamp.

William W. Bierce, Limited, a Corporation, Plaintiff,

v.

Clinton J. Hutchins, Trustee.

Replevin.

Return Bond.

Know all men by these presents:

That we, Clinton J. Hutchins, trustee, as principal, and      Henry Waterhouse and Arthur B. Wood, as sureties, are held and firmly bound unto William Bierce Company,      Limited, tis successor or successors and assigns, in the sum      of thirty thousand (30,000) dollars, for the payment of      which, well and truly to be made, we bind ourselves, our      successors herein and administrators, jointly and severally,      firmly by these presents.

The condition of the foregoing obligation is as follews:

That whereas the said William W. Bierce, Limited, has begun      in the circuit court of the third circuit of the territory of      Hawaii a replevin suit against Clinton J. Hutchins, trustee,      to recover from him certain property specifically set forth      in the bill of complaint filed in said suit, and of the value      of $15,000, as stated in the affidavit filed therein, and has      requested that the said property be taken possession of by      the high sheriff of the territory of Hawaii, or his deputies,      and turned over to said plaintiff; and whereas said defendant      is desirous of having said property returned, and has      required the return thereof from said high sheriff and his      deputies:

Now, therefore, if the said property and all thereof shall be      well and truly delivered to said plaintiff, if such delivery      be adjudged, and payment to said plaintiff be well and truly      made of such sum as may, for any cause, be recovered against      the defendant, then this obligation to be null and void;      otherwise to be and remain in full force and effect.

In witness whereof we have hereunto set our hands and seals      this 21st day of July, A. D. 1903.

(Signed) Clinton J. Hutchins, Trustee.

(Signed) Henry Waterhouse, Surety.

(Signed) Arthur B. Wood, Surety.

The foregoing bond is approved as to its sufficiency of      sureties.

Dated July 21, 1903.

(Signed) A. M. Brown,

High Sheriff.

The replevin suit referred to was instituted July 20, 1903, by a corporation styled William W. Bierce, Limited, against Clinton J. Hutchins, trustee, and was for the recovery of certain railway material which had been conditionally sold to the Kona Sugar Company, another corporation. The property of the latter company, including this material, was acquired at a receiver's sale by Hutchins, trustee, with notice that the title had been retained by the Bierce Company, and that the property had not been paid for. The plaintiff's affidavit (Rev. Laws [Hawaii] § 2102) stated the value of the material which it was sought to reclaim at $15,000, and a bond in double that sum was duly executed, with the usual conditions of such replevin bonds. The defendant Hutchins thereupon, in order to retain possession of the material claimed, executed a redelivery or return bond under § 2112, Rev. Laws (Hawaii), being the bond upon which the present action is based.

The replevin suit resulted, on March 19, 1904, in a judgment for the plaintiff and against the defendant Hutchins, trustee, for the return of the property and damages for its detention, or in default of return, that the defendants pay the value of the property, which was adjudged to be $22,000.

Inasmuch as the defense by the surety in the action upon the return bond referred to grows in part out of matters which were litigated in the replevin suit, we must state somewhat fully the proceedings in that action. That case, upon a bill of exceptions, was taken to the supreme court of Hawaii. Certain of the exceptions taken by the defendant Hutchins were sustained in a judgment rendered January 28, 1905, one of which was that the trial court had erred in not rendering judgment for the defendant non obstante veredicto. See William W. Bierce v. Hutchins, 16 Haw. 418. A motion for a rehearing was disposed of in that court April 29, 1905 (see 16 Haw. 717). On May 6, 1905, a judgment was entered reversing the judgment of the circuit court, and remanding the case, with direction to render a judgment for defendant non obstante veredicto. Thereupon an appeal to this court was allowed, where the judgment of the Hawaiian supreme court was reversed, for the reasons appearing in the opinion reported in 205 U.S. 340, 51 L. ed. 828, 27 Sup. Ct. Rep. 524, and the case remanded to that court. Thereupon the supreme court of Hawaii held that the defendant Hutchins was then entitled to have a hearing upon other exceptions not passed upon at the first hearing. These were therefore heard and overruled. 18 Haw. 374. An appeal from that judgment was taken to this court, and dismissed, as not from a final judgment. 211 U.S. 429, 53 L. ed. 267, 29 Sup. Ct. Rep. 122.

Pending the review proceedings above referred to, the plaintiff, upon cause shown, obtained a rule on the defendant Hutchins to give a new redelivery bond. Failing in this, an execution issued to recover the property which the defendant had been directed to return, and for the damage for detention and costs. These damages, amounting to $1,050, and the taxed costs, were paid and may be dropped from consideration. The sheriff returned that he was unable to obtain possession of the materials for which the action had been instituted, and therefore returned the execution unsatisfied.

Pending the review proceedings already stated this action was begun against the obligors and the executors of Henry Waterhouse, one of the sureties upon the return bond given by Hutchins, as stated. Wood, the other surety, was sued, but was not found. Hutchins, for reasons immaterial, was dropped out. Upon the issued joined there was a verdict and judgment against the executors of Waterhouse for $22,000, the value of the property which the obligor had failed to return, as required by the judgment in the replevin suit, that being the value adjudged in that action, together with interest and costs of former actions not paid, the whole aggregating $28,156.74, for which there was judgment.

A bill of exceptions was taken from this judgment to the supreme court of Hawaii, which court, passing over the great majority of exceptions without ruling, sustained one which assigned error in the overruling of the motion of the defendants below for judgment non obstante veredicto.

The case having been remanded for judgment pursuant to the opinion and mandate, there was a judgment notwithstanding the verdict for the defendant. This in turn was affirmed by the supreme court of the territory, and the present writ is sued out to review that judgment.

Messrs. Frederic D. McKenney and Henry W. Prouty for plaintiff in error.

[Argument of Counsel from pages 325-327 intentionally omitted]

Messrs. David L. Withington, William R. Castle, W. A. Greenwell, and Alfred L. Castle for defendants in error.

Statement by Mr. Justice Lurton:

[Argument of Counsel from pages 327-331 intentionally omitted]

Mr. Justice Lurton, after making the above statement, delivered the opinion of the court: 

Notes
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