#### R. B. Hoskins, et al. *v.*A. J. Murphy.

Claimants' Bond — Sufficiency-—Judgment On.

A claimant's: bond, providing that the parties -will perform the judgment of the court, or have the- property bonded, forthcoming- to satisfy same, does not authorize the assessment against same of- the 10 per centum damages- in ease the claim be unfounded.

Courts — Rule Against Sureties in Bond — Appeal.

A rule to show cause why sureties -should not return property bonded by them, was responded to- by sureties that a supersedeas had been executed: the rule was made absolute. Held, that ,as no- judgment had been rendered against the sureties, the order making the rule absolute is not subject to -adjudication on appeal.

Evidence — Abatement—Another Suit Pending.

Evidence, in the form of a record1 of another suit pending in a different. *339State, between the litigants, cannot he offered, where no allegations of same are set out in the pleadings.

APPEAL EROM JEEBEBSON OIRCUIT. CHANCERY DIVISION.

January 27, 1870.

Opinion oe the Court by

Judge Williams:

Appellees attached 21 bales of cotton at Louisville, Kentucky, as the property of Lemoin, claiming that Lemoin and Asbley were tbeir debtors, on the ground of non-residence, the debtors being residents of Mississippi. Hoskins the brother-in-law of Lemoin, presented his petition as claimant of the property, to which appellees replied denying, his title and alleging that his purchase was fraudulent.

Lemoin and Ashley were only constructively before the court, having made no personal appearance. Hoskins gave bond and got ppssession of the cotton.

The court on final hearing adjudged against his claim and subjected the property to appellees’ claim and ordered a rule against Hoskins’ securities to show cause why they should not return the cotton, to which they respond that Hoskins had executed a supersedeas bond preparatory to taking an appeal to this court. The court helow made the rule absolute, and both adjudications are here for corrections of errors. The evidence fully justified the court in pronouncing Hoskins’ pretended purchase of the cotton as colorable and fraudulent, to shield it from Lemoin’s creditors, hence it must be affirmed.

The covenants of the claimant’s bond, which seems to have been taken in open court, are to abide and perform the judgment or have the value of the cotton forthcoming to satisfy it. The bond is somewhat informal and does not provide for the payment of ten per cent, damages in case the claim is unfounded, as is. provided by the Civil Code, when a sale at law is suspended by the claimant. The evidence in the main case was agreed to be the evidence in this case, and it shows there were over ten thousand pounds of the cotton, worth at least 24% cents per pound, which would make it worth $2,450, or more, at least a sufficiency to pay this debt with all its costs.

But as no judgment has been rendered against Hall and *340Long on tbe claimant’s bond for any given number of dollars, and as tbe court must yet ascertain tbe exact amount of tbeir liability by future proceedings, we cannot adjudicate upon tbe mere order making tbe rule absolute.

*Russell, for appellants.*

*Barr &*Ooodloe, *for appellees.*

If in tbe future order of tbe court, Hall and Long should be adjudged liable for a greater amount than tbeir covenant justifies, they can then bave it corrected by appeal, but in its present situation we cannot adjudicate upon this matter.

Hoskins offered in evidence a record of a suit and attachment in tbe state of Mississippi, by appellee against Lemoin and Ashley, wherein they insist that this same cotton was attached and bonded. As no such suit was set up in any pleadings and could not bave abated tbe suit if it bad been, we see no legitimate purpose for which tbe record of a mere pending and undetermined suit in another state could be used, and its rejection was proper.

Wherefore the judgment on Hoskins’ appeal is affirmed, but Hall and Long’s appeal is dismissed without any prejudice to future proceedings, either in tbe court below or in this court.