#### *Jane Dehay ads. Ferguson*& *Dangerfield.*

Where an action is brought by a party, on a bond given under the Trover Act of 1827, “to be answerable for all damages which the defendant may sustain by any illegal conduct, iri commencing and conducting the said action of trover,” and the party sueing on the said bond recovers, a new trial was ordered, unless the plaintiff would release all the verdict except so much as was rendered for the taxed costs of the former action. *Vide Brown vs. Spawn,*3 Hill 324, and note thereto.

*Before*Earle, J., *at Charleston, May Term,*1841.

Debt on bond *\ pleas, non est factum,*and *non damnificatus.*One Rhame had. brought an action of trover against these plaintiffs, for fourteen negroes, valued at $10,000; under the Act of 1827, he made the necessary affidavits, and the plaintiffs were required to give bond. Rhame, on filing his declaration, likewise entered into bond, with the present defendant as his surety, to be answerable, according to the provisions of the Act, for any illegal conduct in sue-ing out the said writ, or instituting the said action of tro-ver. On the trial, there was a verdict for the defendants in that action, (the present plaintiffs,) and they had judgment and execution for their costs, with a return of *nulla bona,*whereupon they brought suit upon the bond given by Rhame and this defendant, on filing the declaration in tro-ver. The plaintiffs offered no other evidence of illegal conduct in bringing the action, than the affidavit setting up a false claim to negroes not his own, and causing the plaintiffs to give bond in a large amount. They offered the record with the verdict and judgment for the defendants, and claimed for damages the counsel fees paid, and agreed to be paid, and the taxed costs of the action. The presiding Judge thought that the question arose only on the statute, and that making a false affidavit, and commencing a groundless action, as was manifested here by the verdict, did constitute illegal conduct, under the Act, and made the defendant liable in this action. The jury were told that the plaintiffs were entitled to recover the charges of defending themselves from the false claim of the former plaintiff in trover, and that part of a counsel fee agreed to be paid, properly constituted an item of those charges. The jury found for the plaintiffs, accordingly.

*229*Grounds of*Appeal,

1. That his Honor erred in charging that the verdict for the defendants, in the original action of trover, was sufficient proof of the groundlessness of the action, and the falsity of the affidavit made to support it, and indeed was the test of the “ illegal conduct,” in commencing and conducting the original suit, which, under the trover Act, entitles the present plaintiffs to damages against the defendant.

2. That his Honor erred in charging that the costs, and the counsel fees also, of the defendants in the- original action, and as well the costs and portion of the counsel fees remaining unpaid, as the portion of the latter actually paid, were recoverable in the present action.

3. That the verdict was, in other respects, contrary to law and evidence.

*Yeadon,*for the motion

cited and referred to *Spann vs. Brown,*3 Hill, 324; Bull. N. P. 11. The Act of 1827 merely subjects the sureties to the liabilities of the principal.

Petigru, contra,

said that it was illegal to make a false claim in trover, under the Act of ’27. The liability for costs, arises from the illegal conduct of bringing a false action. The counsel fee ought, as a matter of course, to follow. The party is amerced for bringing a false and groundless action.

*Curia, per*

Evans, J.

In the case of *Broten vs. Spann,*3 Hill’s Reports, a construction was given by this Court to the trover Act of 1827; and, at the request of the counsel for the plaintiffs, we have heard further argument, and reconsidered that decision. But the re-argument has not changed the opinion expressed in that case, so far as it goes. So much, therefore, of this case, as involves the right of the plaintiffs to recover the counsel fees paid by them in the case of *Rhame vs. Ferguson & Dangerfield,*must be governed by the case of *Brown vs. Spann.*But the question of costs did not arise in that case, and we are of opinion the plaintiffs may be allowed to retain so much of their verdict as covers the taxed costs in Rhame’s case. *230without conflicting with the case of *Brown vs. Spann.*In that case, it is said, in general, the Courts are open to all who conceive themselves injured, and all may lawfully bring their complaints before the Court for adjudication. The only legal consequence of failure, is the payment of such costs as the law allows. In Buffer's *Nisi*Prius, it is said, “it is not actionable to bring an action, though there be no good ground for it, because it is a claim of right, and the *plaintiff*finds pledges to prosecute, and is amercea-ble *pro falso clamore,*and is liable for costs.”

It would-seem from this, that although a man may bring an action without a legal cause, where there is no malice, without subjecting himself to action for damages; yet it is so far regarded illegal, as to subject him to the payment of costs. The Act of 1827, no doubt, intended to require of the plaintiff the guaranty of a bond, with security, to satisfy any legal liability growing out of the *action of trover,*as well to secure the payment of damages where, by law, they are recoverable, as the costs where, as in this case, the plaintiff is insolvent and unable to pay. We are, therefore, of opinion, a new trial should be had, unless plaintiffs shall release all their verdict, except so much as was rendered for the costs of the former action; and it is so ordered.

We concur. J. S. Richardson, John Belton O’Neall, A. P. Butler.

Wardlaw and Earle, absent.