#### GEORGE A. GRAY v. NATHAN O. BOWLS.

The obligation of a bond for the forthcoming of property, is only that the property shall be delivered to the officer at the time designated, and not that the execution shall be satisfied; and therefore, if a surety to the forthcoming bond before it is forfeited, discharges the execution without the request of his principal, such surety cannot maintain an action against his principal for money expended for the latter’s use, although by the payment of the money in satisfaction of the execution, the bond was discharged.

This was an action of assumpsit, tried at Mecklen,berg, on the last Circuit, before his Honor Judge Strange. Upon the trial it appeared in evidence, that the defendant had in his possession, and claimed title to a slave, which was levied on under an execution against another person. Being about to remove to the west, he at first intimated an intention to pay off this execution, and take the negro with *438him. The plaintiff, to enable him to execute this intention, offered to lend him the money, but the defendant declined the offer, declaring then his determination to execute a forthcoming bond to the officer, carry away the negro, and suffer the bond to become absolute. The plaintiff, upon this declaration, joined the defendant as a surety in a forthcoming bond, and before the day appointed for the forthcoming of the property, paid off the execution, and then sued the defendant for the money so paid, as having been expended for his use, and at his instance and request.

The plaintiff’s counsel contended, first, that there was evidence from which the jury might infer an express promise of indemnity. And, secondly, that if the jury were not satisfied of any’such express agreement, yet, if in point of fact, the plaintiff had paid the money, and the bond had been forfeited, the plaintiff being responsible, and liable to be compelled to pay by suit, the law implied a promise of indemnity on the part of the defendant, although the plaintiff had not awaited the issue of legal compulsion. His Honor left the case to the jury on the first point, to find an express promise of indemnity, if the evidence should satisfy them that it was in fact made; and charged them, upon the second point, “ that although the money was paid before the forfeiture of the bond, yet if it was in fact paid upon an anticipated liability which in the event did fall upon the plaintiff previously to bringing his action, he was entitled to recover;” but that if there was an understanding between the plaintiff and defendant, that the money was not to be paid, except at the end of a lawsuit, the plaintiff could not,.by advancing his money, entitle himself to recover of the defendant. The jury returned a verdict for the plaintiff; and the defendant appealed. '

No counsel appeared for the plaintiff in this Court.

*D. F. Caldwell,*for the defendant contended ;—

1st. That there was no evidence in relation to an express promise of indemnity, and that the Judge should have so instructed the jury: that the charge was calculated to mislead them; for the consideration being past,- an express promise or a previous request should have been proved. *4392d. That no man has a right to make himself the creditor of another without his consent or against his will. *Gregory*v. *Hooker’s Admr.*1 Hawks, 394. 2 Stark. Ev. 101, 102. *Stokes*v. *Lewis,*1 Term Rep. 20. Chitty on Con. 178. 13, 14. In the case of a dishonoured bill *after*its protest, a friend may pay for the honour of the drawer, but this is an exception, and perhaps the only exception to the general rule.

Gaston, Judge.

— We regret that this case has not been argued on the part of the plaintiff, as possibly that argument might have enabled us to see it in other lights than those cast upon it by our unaided reflections. It seems to us, that the instructions given to the jury were erroneous. (His Honor here stated briefly the facts of the case as above, and proceeded: — )

We can discover in the case no evidence of any express contract between the plaintiff and the defendant, and so we think the jury should have been instructed. There is indeed evidence of an implied contract. As the plaintiff executed the forthcoming bond as surety for the defendant, the law implies that the defendant engaged to indemnify the plaintiff against the responsibility thereby incurred. But it implies no further promise. According to our law (act of 1807, *Rev. ch.*75],) the sole object of the forthcoming bond is the indemnity of the officer, who after delivery of the property remains liable to the plaintiff in execution, in all respects as though he had retained it in his hands. By the bond no obligation is imposed to pay off the execution. If, indeed, the defendant in the execution, or any other person should pay it off, the bond is necessarily extinguished, because it is given for “ the forthcoming of the property to answer the said execution or process.” When another than the defendant ih the execution satisfies it, the money is paid to the use of such defendant, and not to that of the obligors. But even as against *him*an action cannot be maintained unless it appear that the payment was at his request, express or implied.

Had the bond in this case become absolute there would *440then have been room for the question on which the Judge charged the jury, whether the plaintiff could rightfully satisfy the damages thereby incurred before the amount had been ascertained by a judicial decision. It is not necessary for us to pass upon it, though we presume the general rule to be, as the Judge understood it, that when the engagement of the surety has become absolute by the default of his principal, he may pay without awaiting a suit, and what is thus paid, if it exceed not his legal liabi-he regarded as expended for the use, and at the instance and request of his principal. But here the plain- ^ advanced what the defendant had not engaged to pay. Whether the defendant intended to contest the liability of the slave to the execution, or contemplated that the judgment debtor, or some one on his behalf would satisfy the judgment, or whatever might be his purpose for preferring g¡ve a forthcoming bond, he chose to incur the liability attached to that bond; and the plaintiff, at his instance and request, also incurred the same liability. The plaintiff has sustained no loss and paid no money because of that liability. We feel ourselves bound, then, to say, that the money expended under the circumstances of this case, was not money expended for the use, nor at the request of the defendant. The judgment is reversed with costs, and an *alias venire*must be awarded.

Per Curiam. Judgment reversed.