
    John Ricks vs. Wm. G. Richardson, Sheriff.
    Where, in an action of trover, the. sheriff has taken security for the production of the property, under the Act of 1827, he cannot afterwards re-take the defendant on account of the alleged insufficiency of such security.
    Such security is not properly bail; but the rule adopted by the Courts to judge of the sufficiency of the one, may be resorted to as a test to determine that of the other.
    BEFORE O’NEALL, J., AT SUMTER, FALL TERM, 1837.
    This was an action on the case against the defendant, for taking insufficient security in a case of this plaintiff against one Flora A. Blair. It appeared that the plaintiff had sued out a writ in trover against her, and, under the Act of the Legislature, had obtained an order that she should enter into bond with good security for the forthcoming of the slaves, the subject matter of the action. The sheriff arrested her and she gave bond according to the order, with William Henry Arthur as her security, in the penalty of one thousand dollars. Soon after the sheriff had accepted Arthur as security, and released Mrs. Blair from the arrest, the plaintiff gave notice to his deputy, (Wm. E. Eichardson) who had made the arrest and taken the security, that Arthur was insolvent, and about removing. Subsequently a rule was served on Mrs. Blair to show cause why additional security should not be given ; she immediately left the country. The plaintiff pursued his action of trover and recovered a verdict for one thousand and fifty dollars.
    The negroes, the subject of the action, were carried by Mrs. Blair out of the State before the recovery in trover was had.
    The proof in relation to the sufficiency of the security, Arthur, was to this effect. , Originally under his grandmother’s will, he was entitled. to about eight negroes and a plantation. Before he was taken as security, all .of these negroes, with the exception of one which was insane, had died. The plantation he sold, and received in payment a valuable negro man, which he had when he was taken as security. At the same time be bad also in bis possession a negro woman and three children, which be bad just bought at an advanced price, at an administrator’s sale, and which were probably mortgaged for the purchase money. He was in the management for his mother, of a large estate, which was the intestate estate of his father.
    Five witnesses for the plaintiff said that he was insolvent, and utterly insufficient security. Thirteen witnesses, (two of whom were the plaintiffs,) said that he was in good reputation and credit, and they thought him sufficient.
    The presiding Judge stated in his report, that the first ground of appeal presented a question not made on the trial: but he was willing that the plaintiff should have the same benefit from it, as if he had ruled it against him. For there was nothing in the Act which would have justified the sheriff in re-capturing the defendant, after he had accepted security from her for the forthcoming of the negroes.
    He instructed the jury that the security taken under the-Act was not properly bail, but that the rule adopted by the Courts, to judge'of the sufficiency of bail, might be resorted to as a test to determine the sufficiency of the security.
    The question- of the solvency of Arthur was submitted to the jury as one of fact; so was that of his sufficiency as security for the sum of-one thousand dollars.
    The jury found a verdict for the defendant, as his Honor thought, very correctly and properly.
    The plaintiff moved the Court of Appeals for a new trial on the following grounds, viz:
    1st. That the sheriff on receiving notice that William H. Arthur, who was taken as security in a bond in trover, in the case of John Rieles vs. Flora A. Blair, was not sufficient, should have re-taken the defendant in thatyase, and caused her to give other security: the terms of the Act of 1827, concerning trover, allowing him to do so.
    2d. That the trover Act of 1827, did not authorize the assignment of the bond in trover — and that the bond not being assignable, if the property should not be forthcoming to answer the action, the sheriff is liable for not producing it.
    Sd. That his Honor, the presiding Judge, misdirected the jury in bis charge, by stating, that in trover bonds, the sufficiency of the security should be judged of .by the rules which regulate the surety in bail.
    4th. That the said William H. Arthur was insufficient security when he was taken.
    
      C. W. Miller, for the appellant.
    
      Withers, contra.
   Curia, per O’Neall, J.

The result of the case below is satisfactory to this Court. The motion is therefore dismissed.  