#### Caroline Chartran *v.*J. W. Schmidt.

Under the trover act of 1827, it is not essential that the affidavit required by that act should he made hy the *plaintiff.*The affidavit of a *third person*is equally competent; and in the case of a free person of color plaintiff, is proper and sufficient.

*Before BUTLER, J., at Charleston, January Term,*1839.'

The plaintiff (a free colored woman,) brought her action of trover, for negroes, under the act of 1827, against the defendant. On the affidavit of a third person, the defendant was under • order of the clerk of court, compelled to give bond and security. His counsel moved Judge Bay, at chambers, to set aside the order, which was granted.

The plaintiff now, upon her own* affidavit and that of a third person, moves the court to have security from the defendant, and other matters, in these words, viz:. 1st. That the defendant in the above instituted cause be required to enter into bond and security, *230for the production of the specific chattels sued for, in case the plaintiff recover. 2d. If this order be granted, that the plaintiff be allowed, upon entering into bond with security, to file the declaration and docket the cause for hearing. 3. But if the first order be not granted, then this plaintiff, in the present condition of the cause, be allowed to file the declaration and docket the cause, the clerk having refused so to do, on the first day of the term, on the ground that the plaintiff had not entered into bond with security, as required by the act; to all of which the defendant objected, and the court granted the motions.

The defendant appealed from the decision of his honor, the presiding judge, and now moved to reverse the same, on the following grounds: 1. That the plaintiff being a colored woman cannot make an affidavit affecting the rights of a free white man, as in the present case. 2. That the affidavit ought to have been made at the commencement of the suit, and it is now too late. 3. That an action of trover, commenced under the statute of 1827, cannot be changed into a common action of trover; but that if it fails to be supported under that act, a new suit must be commenced. 4. That the granting of the motions of the plaintiff is against law.

Curia, per Earue, J.

The plaintiff a free colored woman, brought trover for negroes, under the act of 1827; and, on the affidavit of a third person, procured an order from the clerk, requiring the defendant to enter into bond with security, according to the provisions of the act. This was set aside by his honor, -Mr. Justice Bay, at chambers, and the plaintiff moves to reverse the decision.

It would be a very harsh construction of the act of 1827, which was intended to provide so ample a remedy, for a mischief so severely and extensively felt, if we should hold that no affidavit shall be sufficient to authorise the order for security that is not made by the plaintiff himself; a construction so literal and strict does not conform to the rules by which remedial statutes are usually interpreted; nor does it derive any countenance from precedent or analogy. I apprehend no instance can be cited, (certainly none was cited,) at the bar, when the affidavit of a party *231is required, that the affidavit of a third person will not be equally competent, if the fact be of such a nature that a third person can be supposed to know it, so as to depose with sufficient certainty. The case of bail, in civil actions generally, is entirely analogous; and no sensible reason can be imagined why the affidavit of a third- person shall be sufficient in ordinary bail, that will not equally apply to the security required in trover by the act of 1827. Bail, in trover, might have been ordered before, under the act of 1769, on the affidavit of a third person, that the chattel sued for belonged to the plaintiff, and had been converted by the defendant; and it would be very strange if the legislature could have intended to impose harder terms on the plaintiff, for the purpose of securing the production of the chattel, than would be required to secure the body of the defendant, to satisfy the judgment. The language of the act, it is true, is “ upon affidavit made by any plaintiff.” But the supposed disability of the plaintiff herself to make an affidavit, puts her in no worse condition than that of any other plaintiff would be, on the construction claimed by the defendant, who should happen to be absent from the country, or who might not be sufficiently informed, either of his title or of the conversion, to make the affidavit himself. All such plaintiffs would be excluded from the benefits of the act, which would thus fail to provide a remedy co-extensive with the mischief. The rule of court requires the affidavit of a party who moves to continue a cause; yet it is every day’s practice to admit, for the purpose, of the affidavit of third persons. The argument that the plaintiff cannot delegate authority to an agent, to do that which she cannot do herself, is merely specious. If not a case of agency, the oath is not taken by virtue of a power of attorney. If this were true, the attorney might lawfully do whatever the plaintiff could do, and a plaintiff might appoint a free negro, a felon or convict, to make an affidavit for him. The person making the affidavit swears from his own knowledge, and not from the information of the plaintiff. It would be gross injustice to allow a free person of color to bring an action, and withhold the means of making it effectual. The judgment of his honor, Mr. Justice Bay, vacating the order for security granted by the clerk, on *232issuing the writ, is set aside, and the said order returned to its original effect.

*King*and *Walker,*for the defendant.

*Simons,*for the plaintiff.

Gantt, O’Neall, Evans, Richardson, and Butler, Justices, concurred.