
    Nannie E. Wall et al. v. J. L. Pulliam, Trustee, et als.
    
    Attachment Bond. Property in hands of receiver. No conversion of, if lost. Attachment bill was filed, claiming title to certain slaves in 1860, and attachment bond given. Slaves were, in a few days after being attached, by order of the Chancellor, placed in the hands of a receiver pending the litigation, and, while so held, were emancipated by the action of Federal authorities. Chancellor held complainant and the surety on attachment bond liable for the cash value of the slaves at tlie time of attachment. Held, this is erroneous. The slaves while in the hands of the receiver were in eustodm legis, and there was no conversion of them or change of title, and hence the loss, when they were emancipated, fell upon the defendants, and must he borne by them.
    PROM PAYETTE.
    Appeal from Chancery Court at Somerville. John W. Harris, Ch.
    Shelton, for complainants, insisted:
    1. The slaves were never in the possession of either the complainants or their sureties on the bond, but were, under the direction of the Judge granting the fiat, in the possession of the sheriff, in custodia legis, under express directions to “ keep them safely until further directions.”
    2. The decree of the Chancellor proceeds on the idea of a conversion of the slaves. But a conversion is not predicable of the reception or retention of property under an order of a Court of competent jurisdiction, or under the order of a Judge acting judicially in a matter within the scope of his jurisdiction, although the order or decree may be erroneous: See 1 Chitty’s PL, 78; 4 Moore, 361; 3 Stephen’s Nisi Prius, 2683.
    3. The slaves were never in the possession or custody of either the complainants or their sureties, but even if they had been, the obligations and liabilities under the circumstances of this cause were such only as the law would impose on them as a receiver: See 2 Sneed, 370; 10 Hum., 365.
    4. The parties defendant, even though the attachment might have been improperly sued out, on the next day after the attachment was levied, to-wit: on the 2nd August, 1860, by consent a receiver was appointed into whose possession the slaves were by the sheriff immediately placed, and it will not be denied from that time they were in custodia legis, and the complainants Peebles and Holloway could not be made liable beyond the damages actually sustained under the terms of the attachment bond.
    5. After the slaves passed into the hands of the receiver, the surety on the attachment bond nor the principal either could be held responsible. The slaves were in the hands of the receiver, and if lost to either or both parties, complainant and her sureties can not be held liable, nor can the receiver and his sureties be held liable for them in specie or their value, for the reason that the breach of either bond was not determined until after the slaves were emancipated, and there could be no breach after emancipation under the general rule, that if a bond or obligation be possible at the time made, but afterwards became impossible by the act of God or the law, or of the obligee, the condition is saved.
    6. The decree is rendered alone in favor of defendants against two of the parties — ISTannie E. Wall, one of the complainants, and J. J. Holloway, one of the sureties on attachment, completely ignoring and preter-mitting the other complainant Edmund D. Peebles, which is a matter of some moment in the event Holloway, the surety on the attachment bond, was bound and thought proper to enforce his rights as such surety. Trué, parties complainant and defendants may be h^ld some liable, others discharged, but this disposition as to their rights must be expressed in the decree settling their rights.
    In support of these positions reference is made to the following authorities: ' Moore v. (jroekett, 10 Hum., 365; Mosely v. Baker, et al., 2 Sneed, 362; Green v. Smith, et als., 4 Col., 436; Story’s Eq. Juris., 1307; 1 Par. on Con., 672, 674.
    J. L. Pulliam for defendants, insisted:
    1. Defendant Pulliam, trustee for defendant Anna, insists that parties are held liable upon attachment bond entered into on the 1st day of August, 1860, for the then- value of certain slaves wrongfully attached and taken out of possession of John D. Goodall, then trustee, in whose place defendant Pulliam was appointed. The bond stipulates as follows: “Now if the said Nannie E. Peebles shall pay the said John D. Goodall and said Andrew J. Peebles, and each of them, all such damages as they or either of them may sustain by wrongfully suing out the attachment herein, and also security for costs according to law, then this bond to be void; otherwise to remain in full force and virtue:” Code of Tennessee, p. 791, s. 4442; Chitty on Contracts, 734; Ghaneey v. Overman, 1 Dev. & Battle N. C. JEtep., 405; Mosely v. Baker, et als., 2 Sneed, 374; Bryan v. Spurgin, 5 Sneed, 685.
    2. The case of Sarah B. Green v. Robert L. Smith et als., 4 Col., 436, is different -from the one now here before the Court. In this, the bond stipulated “ well and truly to have said negroes forthcoming to abide tbe decree to be rendered in tbe cause,” and tbe surety-proposed to deliver tbe slaves to the Clerk and Master, who declined to receive them. In tbe case now before the Court, tbe bond given obligates parties thereto “to pay such damages as may be sustained by wrongfully suing out tbe attachment,” etc.: Lowry and Wife v. Naff & Coffman, 4 Col. What are these damages ? The value of tbe slaves wrongfully attached on the 1st day of August, 1860, and interest on their value.
   EeeemAN, J.,

delivered the opinion of the Court.

In August, 1860, complainants filed their bill in Chancery Court, at Somerville, attaching certain slaves, asserting title to them as against the then trustee, one Goodall, and beneficiaries under a certain deed.

They gave bond for the attachment, conditioned as follows: “Now, it the said complainants (naming them) shall pay to defendants all such damages as they or either of them may sustain by wrongfully suing out the attachment herein, and also security for costs according to law, then this bond to be void.”

On the hearing of the case, in 1870, the Chancellor decreed in favor of defendants, and also that the parties signing the attachment bond herein, to wit: complainants and J. J. Holloway, were liable upon said attachment bond for the cash value of the slaves, and interest on the same from the time attached. From the latter portion of this decree there is an appeal to this Court.

It appears from the record, and from the decree, that tbe slaves were, in a day or two after being attached, placed, by order of the Chancellor, in the hands of a receiver, and so remained, we assume, until emancipation.

The question is, whether the Chancellor erred in decreeing against the parties on this bond for cash value of slaves at time attached.

We hold he did so err. The slaves were in custody of the law, in the hands of the receiver, an •officer of the Court during the pendency of the litigation, and such custody could not amount to a conversion, the principle on which the decree seems to have been based.

Nor can it be fairly assumed that the loss of the slaves was the result of wrongfully suing out the attachment, in any fair or legitimate sense of these terms.

The slaves being in the'custody of the law during the litigation, did not change the title. They still belonged to defendants until emancipation, and the title being in them, they must bear the loss.

This Court, in case of Lee v. Cone, Adler, et als, held the principle to be as we have stated, and we approve that decision as correct: 4 Col., 395.

The decree of the Chancellor will be reversed in this respect, and the case remanded. Defendants will pay the costs of this suit.  