
    J. D. Haile, Sheriff, vs. A. J. Miller.
    
      Trover Bond— Condition.
    
    The condition of the bond was “ if the above bound B. M. do appear at the Court of Common Pleas to be holden at Lancaster C. IL, &c., to answer to O. M., plaintiff in action of trover, for the production of the negro boy Peter, sued for to satisfy the plaintiff 0. M.’s judgment in case he should recover against the defendant, B. M., then the above obligation to be void,” &c. — Held, a good trover bond under the Act of 1827.
    A trover bond conditioned for the production of the chattel is not void, because it contains a further bad condition for the appearance of the defendant.
    BEFOBE WAEDLA'W, J., AT LAÑO ASTEE, FALL TEEM, 1858.
    The report of his Honor, the presiding Judge, is as follows:
    “ Debt on trover bond.
    
      “ Craddick Moseley commenced an action of trover against Eeddick Moseley for the conversion of a slave Peter; he made a proper affidavit; the clerk made a proper order for a bond to be taken from the defendant; the sheriff took the bond now in suit, signed and sealed by Eeddick Moseley and the defendant Miller, his surety. Judgment was had by the plaintiff in the action of trover; the fi. fa. was returned nulla bona, and then this action was brought.
    
      “ The condition of the bond seemed to have been formed by adding to the ordinary condition of a bail bond the condition for production of the chattel sued for in trover, which is required by the trover Acts of 1827 and 1839. It reads thus: “ if the above bound Eeddick Moseley do appear at the Court of Common Pleas to be holden at Lancaster, C. H., &c., to answer to Craddick Moseley, the plaintiff in action of trover for the production of the negro boy Peter, sued for to satisfy the plaintiff, Oraddick Moseley’s judgment, in case he should recover against the defendant Reddick Mosely, then the above obligation to be void, &c.”
    “ Upon motion for nonsuit, I thought that the condition, if not exactly nonsensical, was not such as the Acts above mentioned required, and did not sustain an action in which the'breach alleged was not the non-appearance to answer, but the non-production of the slave. I ordered a nonsuit.”
    The plaintiff appealed on the ground:
    Because his Honor, the Circuit Judge, it is respectfully submitted, erred in holding that the bond upon which the action was brought, was not framed in accordance with the directions of the Acts of the Legislature empowering the sheriff to take such bond, and that the same is therefore void.
    Moore, Williams, for appellant.
    DawMns, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The Act of 1827, commonly called the Trover Act, 6 Stat. 337, was prepared and introduced by the late Judge Butler, when a member of the House of Representatives in the General Assembly.

It provides amongst other things, on a proper affidavit in an action of trover, that a judge, or the clerk of the court, may grant an order requiring the sheriff to cause the defendant to enter into a bond “with sufficient security, to the sheriff of the District in which such action shall be brought, for the production of the chattel sued for, to satisfy the plaintiff’s judgment, in case he should recover against the defendant.” The 20th sect, of the Act of 1839 is merely a re-enactment of the same provision, 11 Stat. 76.

The bond in this case was given under this Act, and the condition is, “if the above bound Reddick Moseley do appear at the Court of Common Pleas to be holden at Lancaster C. H., &c., to answer to Craddick Mosely, the plaintiff, in action of trover for the production of the negro boy Peter, sued for to satisfy the plaintiff Craddick Moseley’s judgment in case he should recover against the said defendant Reddick Moseley, then the above obligation to be void,” &c.

: The question is, whether this condition is such an one as can be enforced under the Acts. It will be observed, that the Acts of 1827, and 1839, do not, like the Stat. of Hen. VI., c. 9, Appendix No. 1 to P. L., 8, declare a bond taken in other form than that pointed out by the Acts, to be void. Yet, notwithstanding the provision of the Stat. Hen. VI. c. 9, bonds which vary and differ from the form of the Stat. in words and circumstances only, are good, 1 Shepp. Touchstone, 374. That being so, under the stringent provision of the Stat. of Hen. VI, c. 9, much less can a similar objection prevail in this case under the Acts of 1827, and 1839.

It is supposed, that the condition here is bad, because of the requirement that the defendant shall appear at the return of the Writ. It is true, beyond doubt, that the Acts do not require such a condition, and if a failure to appear had been the breach assigned, there could be no recovery. But that is not the breach, and the question really is, does this bad condition affect the balance of the condition of the bond ? I think it does not. The case of Anderson vs. Foster, 2 Bail. 500, is full to that point. For there a condition more than the law required in a bond for the Prison Bounds, was held not to affect the other condition required by law. This is fully sustained by Goodman vs. Knight, Cro. Jac. 358; Langdon vs. Goole, 3 Lev. 21.

The condition here, excluding the condition for appearance, . may be read if the above bound Reddick Moseley do answer to Craddick Moseley, the plaintiff in an action of trover, for the production of the negro boy Peter sued for, to satisfy the plaintiff, Craddick Moseley’s judgment, in case he should recover,” then, &c.

This reading makes the condition consistent with the Acts. The rule is, “if the condition be defective in terms, the Court will endeavor to give effect to the intention of the parties, if it can be ascertained from the whole instrument, and they will accordingly transpose, disjoin, and supply words" Langdon vs. Goole, 3 Lev. 22. The motion to set aside the nonsuit is granted.

Glover and Munro, JJ., concurred.

Motion granted.  