#### John R. Spann vs. Ch. and John Brown.

Before his. Honor Judge Eakle, Sumter, Spring Term, 1835.'

The question presented for the consideration of the court, arises’ under the act' of 1827, in relation to the action of trover, which requires the sheriff, on proper affidavit made,- “ to cause' the defendant to enter into bond, with sufficient security, (the sheriff himself,} for the production of the chattel sued for, to satisfy the plaintiff’s judgment, in case he should recover ; and such specific chattel shall he liable to satisfy the plaintiff’s judgment, to the exclusion of other ere-ditors.”

In this case' it has inadvertently happened, that an important witness on behalf of the defendants, has become their surety on the bond ; and the object of the .motion now made, is to restore the competency of the witness, by divesting his interest.

The motion heretofore made at a former term, and refused, was to surrender- the persons of the defendants to the custody of the sheriff,in discharge of the surety; and in refusing that motion, the Court (of Appeals) has held, that the surety is not entitled to the privileges of bail, and that to surrender the defendants, would not be a compliance with the condition of the bond.

Referring to the last section of the act, which provides that certain officers shall “ grant orders for bail at any time during the pen-dency of any suit, in like manner, as such orders are granted at the commencementand construing the several sections in *pari*materia,• as I think they should be construed, so as to afford the same remedy after the suit brought, as at the commencement of the action, I think it may well be doubted, whether the proceeding under the act is not analogous to bail. For it can hardly be contended, that the security under the last clause, when claimed after action brought, is different from that intended under the first; that under one, the defendant can only be held to bail, while under the other, he must give security for the production of the property. Waiving, however, the discussion' of a question, which is considered as settled, let us proceed to inquire, whether the surety can be released by the production and surrender of the property sued for at the trial, and before verdict; for that is the question presented.

*178The statute is remedial, and is to be construed liberally, so as to advance the remedy, and suppress the mischief. Its object and purpose seem to be two-fold : 1. To secure the forthcoming of the property, to satisfy the plaintiff’s judgment, in case he should recover. 2. To create a lien on the specific property in behalf of the plaintiff, in preference to other creditors. The argument against the motion, assumes, that the latter object can only be secured in conjunction with the former ; and that the preferred lien is created only in cases where the bond is actually taken for the production of the chattel under the first section. I think this may well be doubted. Suppose no bond taken in pursuance of the order ? That, the defendant proves refractory, and refuses to give bond, preferring to remain in custody ; or that the sheriff is unable to arrest the defendant, or neglect to arrest him? I apprehend the lien,in favour of the plaiutiff, would still attach ; and that the essential remedy intended to be provided by the latter clause of the first section, for the very mischief which led to the enactment of the law, could not thus be defeated by the perverseness of the defendant, or the negligence of the sheriff, or his inability to perform the duty required of him. And this leads, naturally, to the inquiry, how the sheriff is to perform the duty? He is required “ to cause the defendant to enter into bond.” How shall he do this ? The most obvious, and perhaps, the most effectual mode, is, to arrest the body of the defendant, and detain him in custody, until he give the bond. But in case he cannot arrest him, and the property sued for, be found within reach of the sheriff, I am inclined to think that it would be a legitimate means of enforcing the order, and compelling the security to take possession, and retain it to satisfy the plaintiff’s recovery, serving the process as in other cases of the absence of the party. He would thus secure to the plaintiff the very remedy intended to be afforded by the production of the property, and the preferred lien. In this case, ihe bond has been given ; with a condition to be void on the production of the slaves in question, to satisfy the plaintiff’s judgment, in case he shall recover. The nature and extent of the surety’s undertaking, are to be ascertained from the plain and obvious import of the act under consideration ; and this.is to be construed, so as to advance the remedy for an existing evil, in such way as to secure to the plaintiff the benefit iutended ; but not on technical grounds, so as to place the defendant in a worse condition than he would have been, without making that of the plaintiff any better;. Now, if the property is produced at the trial, and is placed in the custody of the court, ready to satisfy the plaintiff’s judgment, as a verdict is rendered in his behalf, it would seem that his condition is in no degree worse, than if the surrender were delayed until after judgment and execution ; it would seem that the bond is not only complied with substantially, but literally, and that the purposes of the act are fully accomplished. Tne objection that the surrender before judgment subjects the property to other liens in behalf of previous creditors, is founded, as 1 have already advanced, in a mistaken construction of the act; for I would hold, in case of an action commenced under this act, according to the forms prescribed, that the lien attaches, whether a bond be taken or not. But even, if this be erroneous, still, *179im the surrender and delivery to the court, on the trial, other liens Gould not attach, for the property would be in possession of the court,- and in the custody of the law, in pursuance of the provisions of the statute, and in compliance with the condition of the bond; and the court would see that the property should be appropriated accordingly.

The objection, that the bond provides for the production of the property, to satisfy the plaintiff’s judgment, and therefore implies a delivery after verdict, and thus precludes a delivery before, is' a technical objection, and is, I thiuk, untenable on a sound construction of the bond itself, without reference to the act. No time is stipulated for the performance of the condition ; and if the rule of construction contended for, be carried out to its legitimate extent, it would be difficult to say, at what time the surety would be discharged by a surrender. If he could riot deliver before verdict and judgment, he could not for the same reason, before execution issued. At what time after would he surrender, in order to discharge himself? At what time would the condition be forfeited, and the penalty incurred ? At the instant of the lodging of the execution, or at the day of the return, ©r at any, and what intervening day ? 1 know of no' rule of law by

which we can ascertain the precise time when such a condition would be forfeited; nor can I perceive any good reason, why a delivery of the property into the custody of the court, at the trial, is not the most appropriate performance of the condition. It must be borue in mmd, that the surety is not liable for-the amount of the recovery in damages ; he does not undertake, that the defendant shall abide and perform the judgment of the court; nor that he shall answer to the action, and pay the condemnation money, as in case of a bond to re-plevy under the attachment act; but only for the production of the property specifically. The argument in the case of Gray ads. Young, therefore does not apply here, nor is there any analogy.

In case of the bond to replevy, neither the court nor the sheriff can interfere to relieve the security ; for until final judgment, the amount of the recovery cannot be ascertained ; of course, the intent of the security’s liability is uncertain, and the condition cannot be performed, except by lull payment; or a surrender of the principal himself; it having been held in that case, that the security is entitled to the privileges of bail. But, in this case, the intent of the surety’s undertaking is known, by reference to the record and affidavit, both of which contain a specific description of the property, in the possession of the defendant, for the delivery of which he is bound, and the difficulty and uncertainty in the former case, are obviated.

Another objection raised, is, that the bond is a contract made with the former sheriff; that the present sheriff is no party to the proceeding, and therefore cannot consent to the delivery, nor discharge the surety. This leads to the inquiry, whether this is an official bond ; and there can be no doubt that it is. The act requires the security to be given to the sheriff of the district. This bond is taken in that form, “ held and bound unto the sheriff of Sumter district.” But if it were given, and made payable to the late sheriff, Mr. Durant, by name, it is equally clear, that it would be an official bond, which would descend to his successor in office; if sued on, must be sued in *180the name of the successor, and notin that of the ex-sheriff, not being assignable, as bail bonds are. Watson, ord. vs. Whitten.

The condition, therefore, is to be performed to him who is to enforce ■the penalty. Besides, who is to execute the judgment, in case the plaintiff should recover ? The present sheriff is to lay hold of the property, under the execution, and of course, to him is the perform, anee of the condition to be rendered.

It is objected further, that the surety is liable for the delivery of the property at all events, or for its value; and therefore the hond cannot be discharged by delivery at any-time anterior to the determination of the suit. That the defendant is so liable, I admit. But it can hardly be made out that the surety is so liable, in case the negroes should .die, or otherwise be destroyed by the act of God. If it were so, I apprehend very few bonds would be given. The sound interpretation is, that the surety engages for the defendant that he shall not make ■way with the property, but shall produce it if in being, so as to be lia. ble to the plaintiff’s judgment. He undertakes to secure the plain, tiff against the fraud or other misconduct of the defendant, and also in aid of the intention of the statute, against the claims of other creditors ; that the plaintiff shall not be in a worse condition after recovery, than if his right were tried at the instant of conversion, except only the casualties which may destroy the property. Against these it would be monstrous to say that he undertakes to secure (insure) the plaintiff. The rules for the construction of conditions are well settled. “ If the condition be possible at the time of making it, and afterwards become impossible by the act of God, the act of the law, or the act of the obligee himself, then the penalty of the obligation is saved. For no prudence or foresight of the obligor, could guard against such a contingency.” (2 Black. Com. 341.) “ If a man be let to main prize, it is a good plea at the day for the manu captors to say, that he who was let to main prize was dead before the day. If the condition be that the obligor shall enfeoff the obligee at such a day, and before the day the obligor die, and the land descend on the heir, the condition is become impossible by the act of God, and the performance thereof is excused. One devised to his daughter, on con.-dition that she should marry his nephew, on her attaining twenty years of age, and the nephew died young, so that she could not comply, it was held that the condition was not broken. Bacon Abridgement. Condition.” So here if the negroes were to die before the day of trial, the condition would become impossible by the act of .God. And the condition might become impossible by the act of the law. Sup,, pose a slave to commit a capital offence pending the trial or suit, and on conviction, he should be executed ; the performance of the condi. tion would be excused. A slave is an intelligent, rational being, sub. ject to the influence of like passions with their masters and owners. If one, who is the subject of an action of trover, and for whose delivery a bond has been given, on a sudden affray with a fellow slave is killed, or it he commit suicide, although such an event perhaps could not be regarded the act of God, yet it would be such a casualty as would excuse the performance of the condition. It has been held in pur courts, that the owner of a steam boat, as a carrier, is not liable *181Jbr a slave who remains below during the passage and is rowned. (4th M’Cord, 223.) But I do not mean to decide more than the distinct question presented, whether the negroes can be surrendered at the time of trial, in discharge of the bond. If deaths have occurred before this, the question of the liability of the surety becomes a distinct •one from that now before the court, and may lead to a separate discussion. And this leads me to refer to the distinction which I threw .out during the argument, between a proposition to surrender to the •court at the trial, and a surrender at any indefinite time before. I think such a distinction is well founded. This is said to be a contract between the surety and the sheriff, affording a certain security (by bond, which is a personal contract) to the plaintiff; and the argument is, that the court cannot change the security. Now this seems to me to be *p.etitio principii.*For the security is not changed, either by a surrender before, or at the trial; a new surety is not substituted. The thing intended to be secured, is substiluted in .place of the contract to secure. The contract is executed by the delivery; and the plaintiff is placed precisely on the ground most for his benefit, at least in case of a delivery at the trial. But in case of a proposition to surrender at an indefinite period, before trial, it may be doubted whether the court would interfere to compel the sheriff to receive the property, not denying that such a delivery, if accepted by the sheriff, would be a good plea, in bar to an action on the bond. The objection raised as to expenses and safe keeping, would be addressed to the discretion of the sheriff. The delivery to him, I apprehend, would not save the defendant from liability for hire, but for this, the surety is not liable. The argument, however, that such a delivery to the sheriff, before trial, would be virtually a delivery to the plaintiff, and a discharge of the action, is not without plausibility, and such a course might lead to embarrassing difficulties. But 1 perceive none in the course now proposed. The same question of identity, which is now suggested, must have arisen when the sheriff was called on to take the security, for he must then have been satisfied, in order to assess their value, that he might determine the amount of the penalty. It must, also, arise again, when the execution comes to be satisfied, after judgment; and the difficulty is now no greater than it was before, and will be again.

This case has been before the Court of Appeals, on the question formerly made, whether the surety could discharge himself by a surrender of the principal. The learned judge, who delivered the opinion, threw out an intimation that the surety might discharge himself) by delivering the property, without further expression of his views. That .question was not distinctly made; and, although in general, I do not feel bound by a vagrant dictum thrown out in argument by that court, and am duly impressed with the importance of not professing to decide any question not distinctly involved, and directly made, yet the opinion of the learned judge is entitled to great consideration. And I am pleased to have it in support of my own deliberate judgment.

In order, therefore, to prevent irreparable mischief to the defendant, which would ensue from a construction which would place the plain*182tiff in no better condition, if the trial proceeds, I shall permit the bond to be cancelled, on the delivery of the negroes.

B. J. EARLE.

*Note.*— M’Donald vs. Clark. 4 M’Cord, 223. The owner of *a,*steam boat, as a carrier, is not liable for the valu.e of a slave drowned on the passage, without fault of the carrier, and where the death is caused by the act of the slave. Johnson, J. said — “ Let it be recollected, that this woman is a human being, and possesses reason. Can the carrier restrain or control the operation of her mind ? She wills her own destruction or escape. Can he prevent *it'!*She possesses the power of locomotion. Shall he bind her in fetters, or confine her in the hold of his vessel ? It ought to have been put to the jury to say whether the loss occurred, by the negligence of. the defendant, or the ' act of the slave herself.”