
    
      C. Menude, assignee, vs. W. F. Butler.
    
    Action on bail bond: plea of render to sheriff, and verdict for defendant: New trial ordered, — the evidence being wholly insufficient to sustain the plea.
    The evidence to sustain a plea of render by bail must show an actual, honest delivery of the principal into the custody of the sheriff, so as clearly to malee the sheriff liable for an escape.
    
      Before Whitner, J. at Sumter, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of debt on bail bond, against the defendant, as bail of one Samuel Gr. Bowman.
    
      “ The original record of proceedings to judgment, bail bond, assignment, ca. sa., and sheriff’s return, were all regular, and the defence relied on was a render by the bail of his principal to the sheriff.
    “ A. R. Bradham proved, that he was present on one occasion when the defendant, Butler, said to sheriff Wilder, “ here is a man ” — pointing to Bowman, who was also present — “ I stood his bail for appearance at Court; will you receive him here, or where ?” and sheriff said, “ I will receive him right here.” Witness slapped Butler on the shoulder, in presence of the sheriff, and told him that was the way to do business. Witness said he did not recollect anything else.
    “On his cross examination said, he did not recollect when this was ; did not know whether Wilder was then sheriff, but thinks he was; would not say, however, positively that he was. Wilder was a jocular man; Court was sitting at the time ; could not say whether it was Spring or Fall Court, or what Judge presided. He was not called to witness the transaction, and did not know who else was present — whether any one.
    “ Wm. N. Gardner proved, that he walked up with Bowman, and met Butler, Wilder and Bradham at the steps of the Court House. Butler said, “ here is the man; will you take him here.” Wilder said, “ his case is now called ; we’ll take him up and attend to it.” Butler asked for his bond, and Wilder said he would arrange it at another time; witness did not know exactly what year; thought it was the Fall; thinks it was Wilder’s last term; Skinner succeeded him, and this was his only reason for thinking this Wilder’s term.
    “ Bowman left the country in 1849, and .was living with witness at the time of this conversation between Butler and Wilder, and continued to the time he left.
    “ Witness brought Bowman to the Court House because he was his bail in another case, and intended to deliver him up; did not do so however. Witness thinks Wilder was sheriff; thinks he saw him gallanting the Judge that Court. He wore a cocked hat, but don’t know who was the Judge; does not know any of the Judges except Judge O’Neall.
    
      
      “ Sheriff Skinner proved, that he went into office as successor of Wilder, 12th February, 1848. Bowman was arrested on bail writ 12th October, 1847. During the sitting of Court, and since this case was pending, heard defendant, Butler, speak of the time when the delivery was made by him, of his principal, and fixed on a time since witness went into office, though he did not say he had delivered him to witness, or to whom.
    “ Plaintiff shewed by the record the term at which the case of Menude vs. Bowman was tried. I have no note of date, but think it was Spring term, 1848 ; certainly after Wilder went out of office.
    “ The jury were instructed as to the law of the case, that every render should be an actual, honest delivery of the body to the custody of the sheriff, in order to discharge the bail; such as would clearly make the sheriff liable for any subsequent escape; that the offer should be to the proper officer, and in some proper place, to ensure against chances of escape, unless the sheriff choose to accept on full notice elsewhere; that the bail had a right to require evidence of this act, and demand a receipt, &c.; and that at least on him devolved the onus of satisfactory proof of all matters appertaining to his defence, &c. They returned a verdict for defendant.”
    The plaintiff appealed, and now moved for a new trial, on the .grounds:
    1. Because the proof of render to the sheriff was wholly insufficient.
    ■2. Because, if there was render, the weight of evidence was, that Wilder’s term of office had expired before it was made.
    
      Moses, for motion.
    
      Hammet, contra.
   Curia, per O’Neall, J.

The attempt, in this case, to shew a sufficient render, in discharge of the bail, utterly failed. All of our cases, from Bomar vs. Poole, (2 Speers, 120,) to Douglass vs. Owens, decided here last term, shew this. As is said, in Moyers vs. Center, (2 Strob. 446,) the proof does not shew an actual, honest delivery of Bowman into the custody of the sheriff, so as clearly to make the sheriff liable for a subsequent escape.”

There was no designation of the case in which there was a render ; there is no certain proof that the render, such as it was, was made to Wilder before or after he went out of office.

To discharge the bail under such proof, would leave the plaintiff remediless. For the great probability is, that Wilder could not be made liable for an escape.

The motion for a new trial is granted,

Evans, Wardlaw, Frost, Withers and Whitner, JJ. concurred.

Motion granted. 
      
      
         Ante p. 149.
     