
    Johnston v. Meriwether.
    Statutory Bonds — Failure to Comply with Statute-Effect. — If a forthcoming'bond be not good asa statutory bond, it may be good as a bond at common law.
    Bonds — Collateral Condition — Damages.—On a bond with a collateral condition the jury may find more damages then are laid in the declaration.
    Walter King Cole, had obtained, against Thomas Johnston one of the plaintiffs, who was sheriff of the county of Louisa, a judgment ; and thereupon an execution issued; which was served by the defendant, as coroner, on the property of the plaintiff; who gave, for the forthcoming of the property on the day of sale, a bond to the coroner himself, instead of the plaintiff, with the following condition,
    “The condition of the above obligation is such, that whereas the said Meriwether this day took into his possession sundry slaves viz. Sam, &c. by virtue of an execution issuing from the general court, amounting to £564-. 0. 5., including costs; *now if the said slaves, together with as many more under as good a title as the above said slaves, are delivered to the said Meriwether, when required, on the same plantation for sale, then the above obligation to be void, otherwise to remain in full force.”
    The condition of the bond being broken, Meriwether instituted a suit thereon ; and having stated in his declaration the bond and the condition, assigned the breach thereof in the following words. 1 ‘And the plaintiff in fact saith, that in consequence of the said writing obligatory, he delivered up the slaves therein mentioned, on which he had levied an execution by virtue of his office of coroner for the said county, but that neither the said slaves, nor as many more under as good a title as the said slaves, were by the said defendants, or either of them redelivered to the said ■ plaintiff when required, according to the condition of the said writing obligatory; but although the said defendants were by the said plaintiff often required to deliver . to him the said slaves, or as many more as aforesaid, they the said defendants constantly refused to do so, and did not deliver the said slaves or either of them, or any slave, or slaves, in lieu thereof, to be sold as aforesaid, to the said plaintiff, as by the said defendants undertaking in the condition of the said writing obligatory they were bound to do; whereby &c.
    The declaration lays the damage at ten pounds. Issue was joined on the plea of conditions performed; and verdict was given, and judgment rendered for the plaintiff Meriwether for the sum of 7501.
    The motion for a writ of error in this case, was made by Ronald and Duval, and opposed by J. Taylor and Marshall.
    Ronald and Duval, in support of the motion.
    The bond on which the judgment was rendered.*is void; and, if it be not void, yet the proceedings are erroneous; so that upon either ground, the writ of error ought to be granted.
    The bond is -made void by the act pf 1748, c. 6, $ 7, [c. 10, § 6, 5 Stat. Larg. 517]. It is true, that the first part of that section speaks only of persons in custody, but the expression of the iatter part is general; and, positively, makes void every bond taken by a Sheriff, by color of his office, in a form varying from that permitted by that act, or bjr some other. If the law was otherwise, officers would have it in their power to extort bonds from persons in custody or their friends, for little favors allowed them, which would greatly injure the public justice of the country. In [Rogers v. Reeves,] T. R. 418, it was held that the Court can presume nothing right contrary to the record, although after verdict; and, if it appears to the Court that the verdict was rendered on an illegal consideration, the verdict must be void, and cannot au-thorise a judgment for the plaintiff, [Stotes-bury v. Smith,] 2 Burr. 924; which case also proves that the consideration here was void.
    Again, the bond was void, because it was oppressive:.Johnst.on was not only to deliver the slaves taken in execution, but as many more, of as good a title. The officer might, from time to time, object to the title of the .slaves delivered, and thus look into the title of all those in Johnston’s possession. This is countenanced by the mode of assigning the breaches. The declaration does not merely state that Johnston did not deliver as many more slaves, but that he did not deliver as many more of as good a title.
    But, it is oppressive in another point of view. The officer takes in execution eight negroes. Thesé may be all in the debtor’s possession. He is entitled by law to the restoration of this property, on giving bond with security to have it forthcoming on the day of- sale; but this benefit, which the law gives, is withheld by the officer, unless he will bind himself to do more than the law requires; *more, perhaps, than he can possibly do; that is, to produce property which not only is not in execution, but which, perhaps, may not be within his power. This, surely, is oppressive.
    The bond is illegal for uncertainty, because no time is expressed when the slaves shall be delivered, but they are to be produced when required. Suppose such a bond taken by a Sheriff, on the execution of a capias ad respondendum, that the person would appear noton a given day, but when required: Would it not be clearly void? And yet the reason is the same; because, if a proper bond be not given, the Sheriff is as much bound to keep the goods taken in execution at his own risk, as he is to keep the person.
    The bond is uncertain too, because it does not specify for whom, or on whose property, the execution was levied. The debtor would, consequently, not be protected, by this bond, from another execution for the same debt.
    If the bond be not void, still the judgment ought to be reversed, because the proceedings are erroneous.
    The demand ought to be plainly stated in the declaration; but, from it you cannot collect when, or where, the demand was made, nor is the demand positively averred.'
    The condition of the obligation is in the conjunctive, that he shall deliver the same slaves and as many more; but, the breach assigned is in the disjunctive, and, therefore, does not agree with the condition. If it be said, that this is cured by the verdict, the answer is, that a verdict cannot establish what it was unnecessary to prove; and, it was only necessary to prove what was alleged in the declaration. [Spieres v. Parker,] 1 T. R. 14S.
    *DifEerent breaches are assigned by the plaintiff, as well the failure to produce as many more, as the failure to produce the eight slaves actually taken in execution; so that it is uncertain for what the damages are assessed. If for not producing the slaves not in execution, it is clearly oppressive.
    The verdict is erroneous also, because the damages laid in the declaration are only 101., and a verdict is found for 7501.
    J. Taylor and Marshall, contra.
    By the 12th section of the 8th ch. of the acts of Assembly, bonds for the forthcoming of property taken in execution, may be given to the Sheriff, or other officer serving the same: By the 2d section of the 3d ch. of the Acts of 1769, [8 Stat. Barg. 326,] bonds, payable to the creditor may be taken by the officer, for the forthcoming of property taken in execution: And, by a subsequent section, if the property be not produced, judgment may be rendered, and execution awarded, on motion, against the principal and his securities. This does not repeal the act of 1748, and the two laws may well consist together. Remedy, by' motion, is given only on those bonds which are taken under the act of 1769: But, such bonds may still be taken under the act of 1748, [c. 12, 5 Stat. Barg. 526;] and the common law remedy must be resorted to, where the condition is broken. Both acts are permissive, and not imperative. The 6th chapter of the Acts of 1748, seems not to have been designed to extend further than to regulate the service of mesne process; for, in the same session, the service of executions is taken up and provided for.
    Neither the statute of Henry 6th, from which it was nearly copied, or the act of 1748, seems designed to have comprehended other cases than those where the person was in custody. The motives to the law were the prevention of oppression, and the restraint of the officer from bailing, ^improperly, any debtor in custody, to the injury of the creditor. These mischiefs can only exist, where the person is in custody.
    Such has been uniformly the exposition of ‘ the British statute, 6 Bac. Abr. 182, [Gwil. ed. ;] Beawfage’s Case, 10 Co. 99. If the act of Assembly does not annul the bond for its form, then it is obligatory, unless there be something vicious in itself. It is alleged to contain two qualities, either of which is supposed to be sufficient for its destruction : they are, oppression - and uncertainty.
    The condition is said to be oppressive, because, under it, the officer might inspect the title to every slave, and because it requires the delivery of other slaves than those taken in execution; which certainly the debtor was not bound to deliver, and which, perhaps, he might not have the power of delivering.
    If, upon the face of the writing, the obligation must necessarily be oppressive, and cannot be otherwise, then, perhaps, the debtor may avail himself of it, without pleading it, and putting it in issue; but, if it may, or may not,- be oppressive, according to extrinsic circumstances, then the debtor, to establish the fact and avail himself of it, must put it in issue. In cases thus uncertain upon the face of the instrument, if such be his real defence, he may avail himself of it by pleading; if such be not his real defence, and he has not chosen to put his cause upon it, the Court will-not presume the existence of the fact against the justice of the case, and against a verdict rendered on a fair trial.
    In the present case, oppression does not flow necessarily from the bond, but depends on extrinsic circumstances. It does not appear, nor is it alleged, that any oppressive means have been used to induce its signature. This cannot be presumed; for, the officer had no interest in using them. Any thing unusual in its expression may, since the officer *is thereby put in hazard without a possible benefit, fairly be considered, at least on his part, as the result of accident rather than design. The inconvenience, if it be one, resulting from the right of the officer to inspect Mr. Johnston’s title to his slaves, is incurred voluntarily by himself, and he had a right to incur it. Had it been oppressively insisted on by the officer, the fact might, and would have been pleaded; and, if not, the verdict, even on the issue actually joined, ought to have been found for the defendant in the Court below. So with respect to the slaves contracted to be delivered, although not taken in execution. The probability, and certainly the possibility, is, that the debtor was in possession of slaves sufficient to satisfy the execution ; that those taken were not sufficient for that purpose; and that the officer, perceiving' that a. bond for the forthcoming of the property would certainly be given, might suppose it immaterial, whether he proceeded to serve the execution on other property, or included it in the bond, without actually taking it in execution. This surely is not oppression ; and, if it shall only .appear that the bond might have been taken without undue means or intensions, such means shall not be presumed when the party himself does not suggest or choose to rely on them. If a verdict be plainly founded on an illegal consideration, it is admitted to be void; but, it is denied that the present verdict stands on that foundation. If the bond be not void on the ground of oppression, neither is it on that of uncertainty. There is no uncertainty pretended in the obligation ; it is only alleged to exist in the condition. It is a new doctrine, that uncertainty in the condition of a bond shall destroy the obligatory part. But, there is really no uncertainty 'in the condition. The time when the property is to be delivered is not fixed; but, the delivery must be preceded by a request, and then the time becomes certain.
    It is alleged, that it does not appear for whom,' or on whose property, the execution was levied; and *that, therefore, a new execution might issue on the original judgment: but, this is known not to be the case; because, a new execution is forbidden -by the return on the old one, without regard'to the bond which has been taken.
    All these .objections go to shew, that the creditor is deprived of his remedy on this bond, by motion; but, not that it is void, and that the officer who has become accountable to the creditor, must'sustain the entire loss without recourse.
    The declaration does state a demand, and it is not necessary to say where the demand was made, since the condition of the bond does not require it.
    The breach is well assigned. Had the condition been' in the disjunctive, and the breach been assigned in the conjunctive, then, indeed, the declaration might have been erroneous: but surely an averment, that neither condition was performed, amounts to a sufficient averment, that both were not performed. A part may be done and not the whole; but, the whole cannot be done, and every part remain undone.
    Nor is the verdict erroneous, because it exceeds the damages laid in the declaration. This has been uniformly adjudged to conform with the 6th section of the 5th chapter of the Acts of 1748.
    
      
       Statutory Bonds — Failure to Comply with Statute-Effect. — For the proposition that, if a forthcoming bond is not good as a statutory bon'd, it may be good as a bond at common law, the principal case is cited and approved in Hewlett v. Chamberlayne, 1 Wash. 368; Hooe v. Tebbs. 1 Munf. 503; Winslow v. Com., 2 Hen. & M. 464; Craghill v. Page, 2 Hen. & M. 456; Lynchburg Trust, etc., Bank v. Elliott, 94 Va. 702, 27 S. E. Rep. 467; Porter v. Daniels, 11 W. Va. 259; State v. Purcell, 31 W. Va. 56, 61, 5 S. E. Rep. 308, 310; Hall v. Wadsworth, 35 W. Va. 279, 14 S. E. Rep. 6; Morgan v. Hale, 12 W. Va. 718, holding that the bond was not good as a statutory bond, nor was it good as a common-law bond since it was against public policy. See monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
    
      
       Bonds — Collateral Condition — Damages Assessed Greater Than Laid in Declaration — Effect.—In Peerce v. Athey, 4 W. Va. 28, it is said: “It has been long well settled, that in debt upon a bond, with collateral condition, damages may be assessed beyond those laid in the declaration, if the penalty is sufficient to cover them. Payne v. Ellzey, 2 Wash. 143; Johnston v. Meriwether, 3 Call 523.” See also, citing the principal case on this question, Winslow v. Com., 2 Hen. & M. 465.
    
   The Court

unanimously rejected the motion.

The President did not sit in the cause.  