
    
      James W. Gray, Master in Equity, vs. J. J. Gidiere.
    
    Defendant in Equity being in custody of the sheriff, under an attachment to enforce a money decree, and having appealed, was enlarged, on his giving bond to the Master to pay a certain sum of money within days after the decree of the Appeal Court, “ or surrender himself a prisoner to the sheriff under the attachment now in force against Mm” The attachment was then withdrawn from the sheriff’s office by the agent of the plaintiffs in Equity, and was never re-lodgedHeld, that the failure of defendant to pay the money, or surrender himself to the sheriff, after the decree of the Appeal Court, was no breach of the bond — there being, by the act of the plaintiffs in Equity themselves, no attachment of force in the sheriff’s office, under which the sheriff could have detainocl the defendant in custody.
    
      Before 0’Neajc.l, J.; at Charleston, Spring Term, 1853.
    The report of bis Honor, the presiding Judge, is as follows:
    “ The action was debt on bond, which, in the condition recited, that by a decretal order entered on the 27th of June, A. D. 1840, in the case then and there pending, of Thomas Napier & Co. vs. J. J. Gidiere, executor of L. P. Descoudres, it was ordered, that the defendant enter into bond to the Commissioner of this Court, with two good and sufficient sureties, in a penal sum equal to twice the amount ordered to be paid into Court by Chancellor Dunkin. The condition of the bond is then said to be, ‘that if the above-bound J. J. Gidiere will abide by, and perform the decree heretofore made for the payment into Court of the said sum of money within ten days after the decree of the Appeal Court, (in the matter decided by this Court, the Circuit Court of Equity,) and by the decree of Chancellor Dunkin, or surrender himself a prisoner to the sheriff under the attachment now in force against him, then the above obligation to be void, or else to remain in full force and virtue,’
    “ The defendant pleaded specially, first, no such decree. To this, it was replied, there was such a decree, and issue joined.
    “ 2d. That the writ of attachment, before the Appeal decree was taken out of the sheriff’s office, and that there was no legal authority to receive the defendant Gidiere, on his render. To this, plaintiff replied, that he was not so prevented from rendering himself, and issue joined.
    “ 3d. That the defendant Gidiere was ready to surrender himself within the time limited by the bond — but that there was no writ of attachment in fdrce against him, and that the complainant in the cause of Napier vs. Gidiere, would not deliver the said attachment or any other authority to the sheriff, for receiving him (Gidiere) as a prisoner in the said cause.
    “ To this there was a replication, alleging that there was an attachment in the hands of the sheriff in force against the defendant Gidiere, and issue was joined.
    “ The bond was admitted. The plaintiff then undertook to prove that there was, within the bond, an attachment in force against the defendant Gidiere, in the hands of the sheriff, under which he could have surrendered himself.
    “Alexander Brown, late Sheriff"of Charleston District, was put on the stand, and testified as follows, viz :
    “ The first book shown him, he said, was not the sheriff’s original book. He produced the original, and turned to the entry of the case, Napier vs. Gidiere ; the attachment was lodged 26th August, 1839. The sheriff’s return was, 1 Cepi Corpus;’ then it was followed by '•Discharged by the Court of Equity.’ These were without date, or I omitted to note it. He stated, that though Bentham and Hunt were the solicitors on the record, he did not know them at all in the transaction of the business about the lodgment and execution of the attachment. Oliver M. Smith, an attorney at law, lodged the attachment, and said he would give $100 to have Gidiere arrested. There was great difficulty in finding Gidiere within Charleston district. To insure his arrest, he (the witness) had ‘ threefold copies’ of the attachment made out, and placed in the hands of different deputies. He was at last informed when and where Gidiere was in the city, and arrested him. He was asked what had become of the attachment? He said, his habit as sheriff was, after executing process, to return it to the attorney. He did not, he said, deliver it to the commissioner, Gray, or to Messrs. Bentham & Hunt; he said he believed it was delivered to, or taken by Oliver M. Smith, from his office. It never came back to his office. He said he was sheriff at the rendition of the final decree in Equity, Napier vs. Gidiere; he had not then any authority to receive Gidiere bn his render; Gidiere either came to him and proposed to surrender, or he was told by one of his deputies that he had offered to surrender himself. He (witness) had no authority to receive him, and therefore he declined to accept his render.
    
      “ The deputy of the present sheriff, Mr. Kanapaux, proved that there was no such paper now in the sheriff’s office.
    “A motion for non-suit was made and sustained.”
    The plaintiff appealed, and now moved this Court to set aside the non-suit on the grounds:
    1. Because it is respectfully submitted, that the allegations made by the defendant in his several pleas, having been traversed by the plaintiff, it was incumbent on the defendant, and not the plaintiff, to prove the several issues of fact made by him. \
    2. Because the proof submitted by the plaintiff, as to the existence of the attachment in the hands of the plaintiff, at the time when a final decree was rendered on the said J. J. Gidiere’s appeal, was prima facie sufficient, and should have been left to the jury to pass upon.
    3. Because it having been proved that the attachment was lodged in the sheriff’s office at the time of the execution of the bond, and no evidence having been produced of its subsequent withdrawal by the plaintiff, or any other person having a control over the same, it should have been left as an inference from the fact for the jury to determine, whether or not the attachment was in full force and effect, in the hands of the sheriff, after the final decree of the Court of Appeals, and during the time specified in the bond of the defendant.
    4. Because the loss of the paper, by the neglect of the sheriff in losing it, did not of itself withdraw the legal attachment, and nothing but the Act of the Court of Equity could in any way defeat the efficacy of the attachment; it was still a legal authority to retain the prisoner.
    5. Because the plaintiff proved the bond — the fact that the money has not been paid, or the defendant in custody; and that the final appeal was made, and no surrender to the sheriff, so the bond was forfeited unless the legal efficacy of the same was vacated by the plaintiff, or some one acting for him, and so the Court ought to have charged.
    6. Because the evidence was sufficient to be left to the jury to say if the said attachment was not of force until after the time expired, and the mere loss of the paper was at the risk of Gi-diere, who agreed to surrender himself at his own peril, and no act of the sheriff can excuse him, unless by the act of the plaintiff.
    7. Because the fact that the attachment w;as delivered to Oliver M. Smith, was wholly immaterial, as such an act was unauthorized, and Mr. Gray proved he never authorized any one to withdraw the attachment.
    8. Because the jury was authorized to decide on the testimony. There being no plausible reason for Mr. Gray to receive or detain, it was his interest, if he had any in the case, to keep the attachment in the office. The testimony of Mr. Brown was not as to a fact, but as to his own conjecture. Without this testimony, the proof was conclusive that it was once in the office, and positive proof was necessary to show it out of the office.
    9. Because the Court charged, that once putting the attachment in the office was prima facie proof not enough, but that further proof was necessary to prove it continued up to the appeal ; and that the testimony was not even to be submitted to a jury.
    
      Walker, for appellant.
    
      Memminger, Petigru, contra.
   The opinion of the Court was delivered by

Withers, J.

A more enlarged view of the circumstances which characterize this cause may be derived by consulting the reports of it, as it has been presented to this Court, to be found in 4 Strob. 438, and 5 Rich. 386. Such proceedings were had in the Court of Equity by Napier & Company against Gidiere, as executor of Descourdes, as resulted in an order, by that Court, — a rule to that effect having been made absolute, — that he be attached. A writ, or process to that end, was placed in the hands of A. H. Brown, Sheriff of Charleston District, and he seized Gidiere by virtue thereof. Gidiere, upon petition in Equity, was enlarged, upon his executing a bond to the plaintiff here, with an alternative condition, to wit: that he should pay a certain sum of money into the Court of Equity within ten days after the decree of the Appeal Court, (the cause then pending in appeal,) “ or surrender himself a prisoner to the sheriff, under the attachment now in force against him.” The money was not paid as stipulated, and the Court of Equity directed that Napier be allowed to proceed, at his own cost and charges, upon the bond aforesaid, and that the commissioner attend ivith the bond, in order to sustain the suit. Such is a very brief abstract, intended only to be adequate to the present occasion, of the origin and cause of this action. Gidiere pleaded sundry separate matters in bar; it will suffice to specify that which is to the following effect: that he was ready to surrender himself within the time limited in the bond, but that there was no attachment in force against him, and that Napier, the complainant in the cause against him, for whose benefit the attachment was ordered and this suit brought, would not deliver the said attachment, or any other authority, to the sheriff for receiving him as as a prisoner.

To this the plaintiff rejoined, alleging that there was an attachment in the hands of the sheriff in force against Gidiere; and issue was joined.

Mr. Brown, the sheriff, testified, that Oliver M. Smith, an attorney at law, lodged the attachment (originally) with him, and said he would give $ 100 to have Gidiere arrested — that he knew no other person in connection with the attachment, though Bentham and Hunt were attorneys of record — that he succeeded, by exercising special diligence, in arresting Gidiere — so made return on the process of attachment, and afterwards as follows: “ Discharged by the Court.” (This had reference to the order out of which the bond now in suit arose.) Mr. Brown further testified, that he believed the attachment was delivered to or taken by Oliver M. Smith from his office — that it never came back there — that on rendition of the decree of the Appeal Court, he had no authority to receive Gidiere, and that Gidiere came to him and proposed to surrender, or he was told by one of his deputies that he had proposed to do so.

Upon such issue and evidence the plaintiff, on motion, was non-suited. The motion here is to set aside the non-suit; and the single point is, whether an attachment was in force, in the hands of the Sheriff of Charleston District against Gidiere.

We shall not discuss the question upon the assumption that the process of attachment, once in the sheriff’s office, had been lost by casualty or by negligence of the sheriff, or had been purloined by Gidiere, or had disappeared through his contrivance or instrumentality. It is a fact, not open to reasonable question, that, according to the evidence, Oliver M. Smith procured the custody of it, and never returned it, and no other was ever lodged with the sheriff.

It is urged that this was not to affect Gray, commissioner, for Smith could not be supposed to represent him, and it is stated that Gray represented in the action the interests of others beside Napier. But it is undeniable, that from the entire nature of the proceedings in Equity, leading to the execution of the bond, and from the express order of the Court of Equity, this action was at the instance and for the use of Napier, and was to be undertaken and conducted at his cost and charges. Gray, commissioner, could not be more than a mere nominal plaintiff in this cause. And in various instances this Court does notice and protect parties who are really the litigants under the shadow of other’s names. As to the control of the process of attachment, how could the sheriff dispute the authority of Smith, and how can Napier now dispute that authority l He was the attorney at law, who lodged the process. Napier claimed and now claims the benefit of that act, and no revocation of Smith’s authority before the re-delivery to him ever reached Sheriff Brown. The proposition, as we now have the case, is clear enough, that the sheriff was authorized and bound to respond to Smith quoad the process, and Napier cannot now dispute the act of Smith.

It is moreover contended, that an attachment was of force, and, in contemplation of law, of force in the sheriff’s hands, inasmuch as the order or decree of the Court of Equity remained in full vigor, and that Gidiere was to see to it, on pain of incurring the forfeiture stipulated in his bond; that it was in condition to enable him to render himself, and to warrant his detention ; and that this view is vindicated by considering, that the temporary suspension of his imprisonment was at his instance and in ease of himself.

But it is obvious to answer, that not the Court of Equity only, but Napier, the party in interest, could lawfully supersede the attachment and the writ — if indeed we are to distinguish them. It cahnot be doubted that Napier, directly or by representative, might instruct the sheriff not to proceed. It is not necessary to cite authority to establish, that, in general, a sheriff can arrest no one without due warrant of law — without precept, where that is the known and familiar form of authority, though he may arrest without precept for treason, felony or misdemeanor, committed in his presence (vide sec. 22, Sheriff’s Act, 11 Stat. 28). He, or his deputy, must attend the Courts of Equity, “ and enforce such rules as the Courts may establish,” (sec. 22, 11 Stat. 30). In fact, we know no other executive officer for carrying out the mandates and applying the sanctions of Courts of Record. Having shown that Napier, by the agency of Smith, withdrew from and did not restore to the sheriff, the authority which commanded and justified the capture and detention of Gidiere, his render was thus made impossible by the act of the real plaintiffs.

If we assume that the Court of Equity would have listened to Gidiere’s motion to lodge new process, or that Brown’s motion, after the act of Smith for Napier, to that effect, would have been favored there, still the idea that it was the duty of either to make such movement seems too incongruous to bear argument.

If we seek to run an analogy between this case and that of a defendant’s voluntary discharge under a ca. sa., still it is manifest, that when the party is again to be arrested, there must be process in the sheriff’s hands; which cannot be considered there, if withdrawn by the plaintiff, however it might be if non-existent by the tortious act of the defendant. In case of the withdrawal by the plaintiff, the defendant can no more be in lawful custody by a voluntary render, than by a capture in invitum.

It is not a point in the case, whether Gidiere offered to render himself, or whether he should have done so at a day certain: the issue was, whether at any time after the appeal decree he could have done so, by reason of the plaintiff’s conduct. Our reasoning has been designed to show, that he was incapable of so doing for such reason. The judgment, therefore, is, that the plaintiff take nothing by his motion.

O’Neall, Wardlaw, Whitner, Glover and Munro, JJ., concurred.

Motion dismissed.  