
    
      Paul Bofil v. Sarah Russ et al.
    
    A bond given to the bailiff of a landlord, with a condition to prosecute an action of replevin &c., in consideration of which he delivered up the distress, held to be equally binding as if given to the landlord himself.
    The Statute of 5 Geo. 2, is a mere direction to the sheriff, where the writ is given to him, but does not interfere with any other arrangement which the parties may enter into by private agreement, to try the right to distrain.
    2 Slat. 597.
    1N.& McC. 331.
    
      Before Evans, J. at Columbia, Fall Term, 1847.
    This was a sum pro. on a penal bond. The facts were these. A landlord, in Columbia, issued a warrant of distress against his tenant, Sarah Russ. The warrant was directed to and placed in the hands of the plaintiff Bofil, as his bailiff, who was also one of the town constables. Bofil levied the distress on sundry chattels of Mrs. Buss. She, with the other defendant, joined in a bond to Bofil, with a condition to be void if she sued out her writ and prosecuted her action of replevin — she did neither; and the action was brought on the bond to recover the rent due. The circuit Judge said, strictly speaking, the bond should have been given to the sheriff, but in the case of Kilgore v. Rabb, it was decided that a bond given to the landlord, under like circumstances as in this case, was good at common law. If good when given to the landlord as a binding bond at common law, he did not perceive any reason why it would not be good when given to the bailiff who had levied the distress, and who in consequence of the execution of the bond had delivered the goods back to the tenant; he therefore decreed for the plaintiff.
    The defendants moved the Court of Appeals to reverse the decree, upon the ground of error in law therein, in deciding that a bond given by a tenant to a constable, the bailiff of a landlord, whose goods have been distrained for rent in arrear, to prosecute 'a suit in replevin, is recoverable in law, in an action by the obligee.
    Tradewell, for the motion.
    
      D. Miller', contra.'
   Evans, J.

delivered the opinion of the Court.

By the 20th sec. of the statute 5 Geo. 2, the sheriff or other officer, having authority to grant replevins, .may and shall, in every replevin of distress for rent, take, in^their own names, from the plaintiff, a bond with two securities, <fcc. It is argued from this, no other bond than one given to the sheriff is good; but in the case of Kilgore v. Rabb, it was held that a bond given to the landlord with a condition to prosecute an action of replevin, and to satisfy all costs, &c.3 0 O W GO •5 «-tí aT® *3 ■a p § g tí fern rQ .2 ¿3 t3 •g Jg tí ¿g co ^ O fe» rrt Z, ® ^ J-t !> tí © rj o £4 — 1 tí •+-» <x> tí pq .-g £ L «¡ o £ ajtí ’*> g'o'g h b ¡3 > a ® ftc¡ro'2'S bt .2 tí ® 2 3 rG O “ -P 'f-1 .tí « tí o -2 2 3 j>n.2 (- 8-5 n-g g 3 | ® g S3 5D£ +3 rrl •p" a IS P3 tí- O -2 m ffl ■g tí 03 & o ® 3 S bfS t O ^ tí £3 tí (u *w ogag.S.2 CD 3 § p bD tí >sS' P O CD SCD 2 & § a.a' oq n CD (D -G ' o *.£ .03 ^ & ^3 -[-•> tí tí 2 «■ S”« WD • tí rj - ¿3 <3 ^ o _ ~ .tí „ -tí 03 u 01 o .tí tí tí r"*; £ tí 33 ¡ •fe ® :> 'So 3 -2 •P^so tí cu ® tr o* a -o H'9l ? Qg 3 o ítí -2 CQ

The motion is dismissed

Richardson, J. O’Neall, J. Frost, J. and Withers, J. coacurred.

Motion refused.  