
    Wiley J. Floyd, Sheriff, v. John F. Ervin.
    It is a necessary, legal consequence, that if the chattel sued for in an action of trover is not delivered to satisfy the plaintiff’s judgment, the trover bond is for-feiied, unless the defendant, or his security, when sued, can show something which will, in law, save his bond.
    Where the sheriff levied on and offered for sale, a chattel which was the subject of a pending action of trover, and either from there having been no sale effected, or from the defendant himself having been the bidder, the right of property remains unchanged, the sheriff will not be considered as having put it out of the power of the defendant to produce the chattel according to the condition of his trover bond.
    The defendant, in trover, has a right to use the chattel sued for, pending the action, and is not liable for any natural deterioration, arising from the ordinary use of it.
    
      Tried before Mr. Justice Frost, at Darlington, Spring Term, 1847.
    This was an action against the defendant, as surety to a trover bond, in an action by Leslie v. Bennett. That suit was for the recovery of a buggy and pair of cart wheels; and the plaintiff recovered a verdict for $140, on which he^entered judgment and lodged a fi. fa., the 8th March, 1843. The bond was dated the 8th May, 1840. The carriage had been levied under a senior execution against Bennett, and sold the 7th February, 1843. Pending the action of trover, it had remained in the possession of Bennett, and had been used by him. He made a journey with it to the West, and returned. Afterwards the mules ran away with it, on a drive from Bennett’s to the Court House, and very much damaged it. In this condition, it was said to have been worth thirty or forty dollars; but at the sheriff’s sale, brought only twenty-five cents. It did not appear who was the purchaser; but it got into the possession of Bennett again, who carried it to the West.
    The jury wTere instructed, that a defendant in trover has a right to use the chattel sued for, pending the action; and that the surety is not liable for the deterioration of the chattels by such use; that the obligation of the surety, required that the chattel should not be sold, transferred or destroyed by the defendant; and that it should be delivered to the plaintiff'in satisfaction of his execution, without any stipulation that it should be in the same condition and repair, as at the time the bond was executed. It was submitted to the jury, whether the journey of Bennett to the West, was a use destructive of the carriage; and should they be of that opinion, they were instructed to find for the plaintiff the value of the carriage. They were further instructed, that if the performance of the condition of a bond be made impossible by the act of the obligee, the obligor is discharged; and that the levy and sale of the carriage by the sheriff", under the execution, put it out of the defendant’s power to perform the condition, and was equivalent to a delivery in discharge of his liability. They were told that, even if Bennett was the purchaser at the sale, that would not vacate the delivery to the sheriff, so as to charge the defendant, but that the plaintiff, in the trover suit, should proceed against the sheriff
    It was not suggested at the trial, that the sale of the carriage by the sheriff was unfair or fraudulent, or a contrivance oí Bennett to get possession of it; so the question was not submitted to the jury.
    A verdict was rendered for the plaintiff for the value of the cart wheels, and he appealed, and moved for a new trial, on the grounds annexed:
    1. Because Kindred Bennett, the principal in the trover bond, did not produce the carriage, according to the condition of the bond.
    2. Because he used the carriage, and injured it a great deal before the determination of the action of trover, and its use and abuse was a breach of the bond.
    3. Because his Honor charged the jury, that the defendant in the action of trover had a right to use the carriage.
    4. Because his Honor charged the jury, that the carriage having been sold by the sheriff, anterior to the recovery in the action of trover, the said K. Bennett was discharged from the condition of delivering the carriage, although it appeared that K. Bennett was, in effect, the purchaser, at the nominal price of twenty-live cents, and the possession was i:ot changed, and he continued to use the carriage alike before the sale and after-wards, and finally carried it out of the country, when he removed to the West.
    5. Because the whole proceedings relating to the sale, as appeared at the trial, were a fraudulent contrivance to evade the obligation of the condition of his trover bond, and the plaintiff was entitled to a verdict for the value of the carriage; whereas, the verdict under the charge of' the Judge, was only for the value of a pair of cart wheels, for which also the action was brought.
    Dargan, for the motion.
    The question of fraud can be made in this Court, if the facts can be known on which it is predicated. If one has his property sold by the sheriff, the. name of no person appearing as purchaser, and the property remaining (or never changing hands) with the former owner, ho must be presumed to be the fraudulent purchaser, the price being nominal. The trover bond was thus defeated. Can the defendant in trover use and abuse the article pending the suit? It would be monstrous. If a total destruction makes him responsible, a partial one will also, pro tanto; wine or corn are destroyed in the use; he might ex gratia, use a watch, lor instance, which is not injured by the use, but when the title is destroyed it is different. The trover bond binds the article in presentí as it is, and not as it may be in future. The condition of this bond was not impossible, as Bennett still had the carriage, he could not plead the sale as putting it cut of his power. The title was not changed, in fact. The sheriff was not amenable. Segling v. Maine, 1 M’Muh, 252. The proceeding in trover is in revi. The writ takes the chattel into ¡he custody of the law, and it is not subject to distress for rent. By the Act of 1827, the specific property is subjected to the judgment in trover. Norrcl v. Cor-ley, in note, 2 Rich. Equity Rep., 288, was an action anterior to the Act of 1827, and only for that reason suits the opposite side of the question.
    Sims, contra.
    
   Evans J.

delivered the opinion of the Court.

By the trover Act of ¡827, 6 Stat., 337, a Judge, or the clerk of a Court, upon affidavit of the plaintiff’s intention, to commence an action of trover for the recovery of a specific chattel, and that such chattel belongs to the plaintiff, and has been converted by the defendant, is authorized “to make an order directed to all and singular the sheriffs oftbc said State, requiring them, or cither of them, without delay, to cause the defendant or defendants, to enter into bond with security to the sheriff of the district in which such action may be brought, for the production of the chattel sued for, to satisfy Í he plaintiff’s judgment, and such specific chattel shall be liable to satisfy the plaintiff’s judgment to the exclusion of other creditors.” According to the well established rule, as it has always been understood to be, as laid down in Norrell v. Corley, (see 2 Rich. E R., 288, in note, confirmed in Rogers and Thomson, v. Moore, and Foreman v. Nelson, 2 Rich. E. R., 287,) the effect of a verdict in trover, was to vest the property in the defendant, and the plaintiff’s was only a judgment creditor, to take rank according to the date of his judgment and execution, and if, in the mean time, the defendant, had sold or destroyed the property, and had become insolvent, the plaintiff eventually got nothing after he had established his title to the property, and that the defendant was a wrong doer. The act was intended to provide a remedy for these evils, by requiring that the specific chattel should be produced by the defendant to be sold under the plaintiff’s execution, and that the plaintiff should have the proceeds of the sale to the exclusion of the other creditors. To secure the production of the property, the defendant is required to give a bond with security. It is a necessary, legal consequence, that if the chattel sued for is not delivered to satisfy the plaintiff’s judgment, the bond is forfeited, unless the defendant, or his security, when sued, can show something which will in law save the penalty of his bond. The defence set up for this purpose in this case, is, that the former sheriff, who was the obligee of the bond, levied on and sold the buggy under older executions. I suppose it is law, that if the obligee prevent the obligor from keeping his bond, or put it out of his power to perform the condition, this would discharge the obligor. But this rule can have no application to a case like the present. There is some proof of a levy and sale by the sheriff, but it is insufficient to establish that any sale was perfected. The entry is nothing more than the buggy bid off for 25 cents, but it is not said by whom, and immediately after the buggy was in Bennett’s possession. I think the clear inference is, that there was either no sale, or Bennett was the bidder, which would not operate as any change in the right of property. How then, in fact, can it be said, that the sheriff had put it out of the power of Bennett to perform the condition of his bond. He was in possession of the buggy when Leslie recovered his judgment, and it was entirely within his power to have performed, if he had chosen to do so. But he did not, and I am clearly of opinion the defendant was liable for the value of the buggy. The other question does not affect the right of the plaintiff to recover but the amount of the damages. I suppose, that pending the action, Bennett had a right to use the buggy, and that the defendant is not liable for any deterioration arising from the ordinary use oí it. But in this case the reduction in value from one hundred and forty dollars, deducting the value of the cart wheels, to thirty or forty dollars, as estimated by the witnesses, was not the effect of natural deterioration arising from ordinary use, but from the use of it, or a journey to Mississippi and back, and to the injury done to it by the running away of the mules; which, from any thing that appears, was the result of negligence.

I think there should be a new trial; and the motion is granted.  