
    
      F. Bowen vs. J. M. Coker.
    
    The bond taken by the sheriff in an action of trover, for the production of the chattel sued for, may be discharged by the plaintiff
    Trover for the conversion of slaves. After the action was commenced, and a bond taken ior the production of the property, the defendant delivered the slaves to the plaintiff, and it was agreed that the action should proceed to ascertain the amount due for hire. Held, that the sureties to the bond were discharged by the delivery of the property, and, therefore, that they were competent witnesses for the defendant on the trial.
    
      Before O’Neall, J. at Kershaw, Spring Term, 1846.
    Trover for tbe conversion of negroes. This case was first tried at Fall Term,' 1845, when the plaintiff was non-suited. On appeal, the non-suit was set aside, and a new trial ordered ; see 2 Rich. 13. At this, the second trial, it appeared that after the bond, to secure the payment of which the mortgage was given, became due, to wit: in January, 1846, the plaintiff seized the negroes under the mortgage, and was proceeding to sell the same to satisfy the bond, when, by agreement between the plaintiff and defendant, and one Joseph A. Black, the principal of the debt was paid by Black, and the negroes delivered to him ; and it was stipulated, in substance, that the action should proceed for the purpose of ascertaining the amount due to the plaintiff by way of interest or hire, and that this amount, when ascertained, with the costs, should be paid by Black.
    The defendant had given security for the production of the property under the Act of 1827. At the trial, John English and C. H. Davis, who were the sureties to his bond, were offered as witnesses in his behalf, and were rejected on the ground of interest. Verdict for the plaintiff.
    
      The defendant appealed, and now moved this court for a new trial, on the ground,
    Because his Honor erred in refusing to permit John English and C. H. Davis to be swoin as witnesses, who were bail for the delivery of the negroes, under the Act of 1827, after the fact was proved'and admitted that the plaintiff had taken the' negroes under the mortgage, and had delivered them to a third person for value received, agreeing to take other and different security.
    
      Caldwell, for the motion.
    
      W. F. DeiSaussure, contra.
   Curia, per

Frost, J.

Pursuant to an arrangement between the parties, the slaves, for the recovery of which this action was brought, were, ,by the written order of the plaintiff, and with the oonsent'of the defendant, delivered to Joseph A. Black, who had páid-to-the plaintiff the principal of the bond, and had covenanted to pay the damages and costs which might be recovered in this suit. If, by this delivery of the slaves to the plaintiff,' Davis and English are discharged from liability as sureties to the trover bond, they have no interest in the event of the suit, and are competent. The Act, 6 Stat. 337, requires the defendant to “ enter into bond, with sufficient security, to the sheriff, $ec. for the production of the chattel sued for, tp satisfy the plaintiff’s judgment,” and'provides that “such specific chattel shall be liable to satisfy thé plaintiff’s judgment, to the exclusion of other creditors.’! It is manifest that the sureties to the bond are not, like bail, liable for the debt, damages and costs, but aré bound only for the production of the chattel. The design of- the Act was to relieve the plaintiff from the -legal effect, of the judgment in trover, which, while it established his right to the chattel sued for, transferred and vested the title to the same in the defendant, and that without satisfaction of the damages recovered. By this operation of the judgment, it might, and did frequently, happen, that the plaintiff got, in. exchange for his property, a barren execution. It was'to remedy this mischief, and to give to the action of trover the effect of an action for the specific recovery of chattels, that the security is required from the defendant. By force of the Act, trover, instead of being an action for the recovery of damages for property converted, is made an action to try the title — and differs from detinue, in that damages may be recovered for the detention, and security is provided for the production of the chattel sued for. The bond is required for the'benefit of the plaintiff, being for the satisfaction of his judgment. He alone may demand it, and must give indemnity to the defendant. He may discharge the obligation of the parties by discontinuance of the action. So he may by release of the cause of action. If an action be brought on the bond against the defendant, he may plead the - plaintiff’s release in bar, and so may the sureties. The only objection which can be suggested to this conclusion is, that as the bond is for the satisfaction of the plaintiff’s judgment, in which the costs are included', the officers may have a claim on the bond for the satisfaction of their fees. That such was not the intention, may be inferred from the security being taken only for the production of the property. A lien on the plaintiff’s property, which may be recovered by suit, for the officer’s costs, has no precedent. The obligation to produce the property is subservient to the plaintiff’s right to recover it, and is extinguished by whatever means that right is defeated. In this case, the plaintiff has been paid the principal of the debt, for which, under the mortgage, he acquired a right to the, possession of the negroes. His right has been released by the deed, and the delivery of the negroes to Black ; and he has accepted the covenant of Black to' pay the damages and costs, in discharge of the defendant’s liability. With the right of the plaintiff to recover, the obligation of the defendant and his sureties to produce the negroes, must also be released. Davis and English were then competent witnesses.

The motion is granted.

Richardson, Evans and Wardlaw, JJ. concurred.

O’Neall, J.

I dissent; the slaves were liable to the costs, and bail of course could not be discharged from that liability.

Butler, J. absent at the argument.  