#### R. L. MYERS Adm’r., v. W. D. CREDLE.

Where the defendant in a writ of replevin was not in possession of the thing sued for at the time the writ was issued, and refused to give bond, no recovery can be had against him. .

Third persons, who after the issuing of a writ of replevin come forward and give the bond and receive possession of the thing sued for, from the plaintiff, are not liable to a recovery in such action.

*505Replevin, tried before Jones, J*. at Spring Term 1869 of tbe Superior Court of Beaufort.

At tbe time when tbe writ was served upon tbe defendant Credle, tbe schooner, tbe subject of tbe suit was in tbe possession of Respass, a Constable, wbo bad seized it by virtue of an execution; and Credle refused to give bond. It remained in tbe possession of tbe Sheriff, or of tbe plaintiff, for several weeks afterwards, when one J. R. Selby and one Robert Lup-ton appeared and claimed it as their property, and it was delivered up to them by tbe plaintiff’s attorney, upon their giving bond. Tbe plaintiff claimed a verdict against Credle, and also against Selby and Lupton.

Tbe Court charged the jury that if Credle refused to give any replevy bond, and abandoned all claim to tbe vessel, and that, if afterward tbe plaintiff, by himself or bis attorney, voluntarily surrendered tbe vessel to Selby and Lupton upon their giving tbe bond referred to, tbe plaintiff could recover neither against Credle, nor against Selby and Lupton in this suit.

Tbe plaintiff’s counsel excepted. Verdict for defendant; Rule for a new trial; Rule discharged; Judgment and appealed.

'Carter, for the appellant

Phillips & Merrimon, contra.

Reade, J.

I. Tbe plaintiff cannot recover against tbe defendant Credle, because at tbe time' the writ was issued be was not in possession of tbe property, and did not have tbe control of the same, Rev. Code, ch., 98, sec. 1.

II. The plaintiff cannot recover agaist Selby and Lupton, because they are not parties to tbe suit Tbe fact that tbe plaintiff surrendered the property to them upon their entering into bond “to perform tbe final judgment in tbe suit” did not make them parties^ Whether" there is any remedy against them upon their bond, in some other proceeding against them, is not before us.

*506There is no error. There will be judgment here for defendant.

PER Curiam. Judgment affirmed.