
    C. D. AND J. P. BROWN VS. JOHN R. SPANN AND R. R. SPANN.
    In an action brought on a bond given by the plaintiff in trover in pursuance of the Act of 1827, “to be answerable for all damages which the defendants may sustain by any illegal conduct in commencing and conducting the said action of trover,” the mere fact that the delendant in trover had a verdict, does not constitute a breach of the condition of the bond. “Illegal conduct” means something which the law prohibits ; and a plaintiff’s conduct is not illegal because he failed to establish his right of action.
    Where the defendants in an action of trover, have, in pursuance of the trover Act of 1827, given bond and security for the production of the negroes sued for, the negroes may be delivered up to the sheriff and the bond cancelled, in order to discharge the security, and render him a competent witness.
    Per Earbe, J. on the Circuit. (See case in note.)
    
      Before Mr. Justice Evans, at Sumter, Fall Term, 1837.
    His Honor the presiding judge made the following report of the case :
    The defendant, J. R. Spann, three or four years ago commenced an action against the plaintiffs for the conversion of certain slaves. They were held to bail under the Act of 1827, and the defendant, J. R. Spann, with R. R. Spann as his security, entered into a bond to the defendants in that action and the plaintiffs in this, to answer to any illegal conduct, in commencing and conducting his action against them. On the trial of that case there was a verdict for the defendants, (the Browns.)
    The plaintiffs (the Browns,) then commenced their action on Spann’s bond, and claimed to recover damages for certain expences which they have incurred i'n defending themselves against the action brought against them by Spann. These expences or damages were, 1st. For counsel fees paid attornies. 2nd. The expense and loss of bringing back the negroes from Alabama. Mr. Singleton was their security for the production of the negroes, but being an important witness, it became necessary to bring the negroes back, and to surrender themselves and the negroes to the sheriff, in order to discharge Mr. Singleton and render him a competent witness. The words of the Act of 1827, p. 81, are, “ to be answerable for all damages which the defendant or defendants may sustain by any illegal conduct in commencing and conducting the said action of trover.” Illégal conduct means something done in violation of law ; Was there an^ violation of law either in the commencement or the conducting of Spanti’á action against the Browns ? The only evidence on this point was, that the jury found a verdict for the defendants. 1 did not perceive any breach of the condition of the bond, and therefore nonsuited the plaintiffs.
    
      The plaintiffs moved to set aside the non-suit, on the ground that the illegal conduct contemplated by the trover Act, consists in instituting a suit without just cause; and that in an action on the bond the plaintiffs hre entitled to recover all damages sustained by them in consequence of the action of troven
    
      DeSaussure and Garden, for the motion.
    
      
       The motion to discharge the surety so as to render him a competent witness, was made before Mr. Justice Earbe, at Sumtei, Spring Term, 1835: on granting which, his Honor delivered the following opinion.
      Earbe, J. The question presented for the consideration of the court, arises under the Act of 1827, in relation to the action of trover, which requires the sheriff, on proper affidavit made, “ to cause the defendant to enter into bond, with sufficient security, (the sheriff himself,) fore the production of the chattel sued for, to satisfy the plaintiff’s judgment in case he should recover — and such specific chattel shall be liable to satisfy the plaintiff’s judgment, to the exclusion of other creditors.”
      In this case it has inadvertently happened, that an important witness on behalf of the defendants has become their surety on the bond ; and the object of the motion now made, is to restore the competency of the witness by divesting his interest.
      The motion heretofore made at a former term, and refused, was to surrender the persons of the defendants to the custody of the sheriff, in discharge of the surety ; and in refusing that motion, the Court (of AppealsJ has held, that the surety is not entitled to the privileges of bail, and that to surrender the defendants, would not be a compliance with the condition of the bond.
      Referring to the last section of the Act, which provides that certain officers shall “grant orders for bail at any time during the pendency of any suit, in like manner as such orders are granted at the commencement;” and construing the sections m pari materia, as I think they should be construed so as to afford the same remedy after the suit brought, as at the commencement of the action, 1 think it may well be doubted whether the proceeding under the Act is not analogous to bail. For it can hardly be contended, that the security under the last clause, when claimed after action brought, is different from that intended under the first; that under one, the defendant can only be held to bail, while under the other, he must give security for the production of the property. Waiving, however, the discussion of a question which is considered as settled, let us proceed to inquire whether the surety can be leleased by the production and surrender of the property sued for, at the trial and before verdict — for that is the question presented.
      The statute is remedial, and is to be construed liberally, so as to advance the remedy and suppress the mischief. Its object and purpose seem to be two-fold ! 1. To secure the forthcoming of the property, to satisfy the plaintiff’s judgment in case he should recover. 2. To create a lien on the specific property in behalf of the plaintiff in preference to other creditors. The argument against the motion assumes that the latter object can only be secured in conjunction with the former — and that the preferred lien is created only in cases where the bond is actually taken for the production of the chattel, under the first section. I think this may well be doubted. Suppose no bond taken in pursuance of the order. That the defendant proves refractory and refuses to give bond, preferring to remain in custody — or that the sheriff is unable to arrest the defendant, or neglects to arrest him 1 I apprehend, the lien in favor of the plaintiff would still attach ; and that the essential remedy intended to be provided by the latter clause of the first section, for the very mischief which led to the enactment of the law, could not thus be defeated by the perverseness of the defendant, or the negligence of the sheriff, or his inability to perform the duty required of him. And this leads, naturally to the inquiry, how the sheriff is to perform the duty. He is require ed ’“to cause the defendant to enter into bond.” How shall he do this? The' most obvious, and perhaps the most effectual mode is, to arrest the body of the defendant, and detain him in custody until he give the bond. But in case he cannot arrest him, and the property sued for be found within reach of the sheriff, I am inclined to think that it would be a legitimate means of enforcing the order, and compelling the security; to take possession, and retain it to satisfy the plaintiff’s recovery, serving the process as in other cases of the absence of the party. He would thus secure to the plaintiff the very remedy intended to be afforded by the production of the property and the preferred lien. In this case the bond has been given, with a condition to be void on the production of the slaves in question, to satisfy the plaintiff’s judgment in case he shall recover.. The nature and extent of the surety’s undertaking áre to be ascertained from the plain and obvious import of the act under consideration — abd this is to be construed so as to advance the remedy for an existing evil; in such way as td secure to the plaintiff the benefit intended — diut not on technical grounds, so as to place the defendant in a worse condition than he Would have been, without making that of the plaintiff any better. Now, if the property is produced at the trial, and is placed in the custody of the court, ready to satisfy the plain; tiff’s judgment as soon as a verdict is rendered in his behalf, it would seem that his condition is in no degree worse than if the surrender were delayed until after judgment and execution : it would seem that the bond is not only complied with subslantially, but literally, and that the purposes of the Act are fully ac complished. The objection that the surrender before judgment subjects the property to other liens in behalf of previous creditors, is founded, as I have already advanced, in a mistaken construction of the Act; for I would hold, in case of an action commenced under this Act, according to the forms prescribed, that the lien attaches, whether a bond be taken or not. But, even if this be erroneous, still on the surrender and delivery to the court on the trial, ocher liens could not attach, for the property would be in possession of the court, and in the custody of the law, in pursuance of the provisions of the statute, and in compliance with the condition of the bond — and the court would see that the property should be appropriated accordingly.
      The objection, that the bond provides for the production of the property to satisfy the plaintiff’s judgment, and therefore implies a delivery after verdict, and thus precludes a delivery before, is a technical objection, and is, I think, untenable on a Sound construction of the bond itself; without reference to' the Act. No time is stipulated for the performance of the condition ; and if the rule of construction contended for be carried out to its legitimate extent, it would be difficult to say at what time the surety would be discharged by a surrender. If he .could not deliver before verdict and judgment, he could not, for the same rear son, before execution issued. At what time after would he surrender, in order to discharge himslf? At what time would the condition be forfeited and the penalty incurred ? At the instant of the lodging of the execution, or at the day of the return, or at any, and what, intervening day 1 I know of no rule of law by which we can ascertain the precise time when such a condition would be forfeited — nor can I perceive any good reason why a delivery of the property into the custody of the court at the trial, is not the most appropriate performance of the condition. It must be borne in mind that the surety is not liable for the amount of the recovery in damages ; he does not undertake that the defendant shall abide and perform the judgment of the court — nor that he shall answer to the action and pay the condemnation money, as in case of a bond to replevy under the attachment Act — but only for the production of the property specifically. The argument in the case of Gray ads. Young, therefore, does not apply here, nor is there any analogy.
      In case of the bond to replevy, neither the court nor the sheriff can interfere to relieve the security — for until final judgment, the amount of the recovery cannot be ascertained ; of course, the extent of the security’s liability is uncertain, and the condition cannot be performed, except by full payment, or a surrender qf the principal himself — it having been held in that case that the security is entitled- to the privileges of bail. But in this case the extent of the surety’s undertaking is known, by reference to the record and affidavit, both of which contain a specific description of the property in the possession of the defendant, for the delivery of which he is bound, and the difficulty and uncertainty in the former case are obviated.
      Another objection raised, is, that the bond is a contract made with the former sheriff — that the present sheriff is no party to the proceeding, and therefore cannot consent to the delivery nor discharge the surety. This leads to the inquiry whether this is an official bond — and there can be no doubt that it is. The Act requires the security to be given to the sheriff of the district. This bond is taken in that form, “held and bound unto the sheriff of Sumter district,” But if it were given and made payable to the late sheriff, Mr. Durant, hy name, it is equally clear that it would be an official hond, which would descend to his successor in office : if sued on, must be sued in the name of the successor, and not in that of the ex-sheriff, not being assignable tas bail bonds are. Watson, ord. v. Whitten. MSS.
      The condition, therefore, is to be performed' to him who is to enforce the penalty. Besides, who is to execute the judgment in case the plaintiff should recover ? The present sheriff is to lay hold of the property, under the execution, and ot course to him is the performance of the condition to be rendered.
      It is objected further that the surety is liable for the delivery of the property at all events, or for its value; and therefore the bond cannot be discharged by delivery at any time anterior to the determination of the suit. That the defendant Í3 so liable, I admit. But it can hardly be made out that the surety is so liable, in case the negroes should die, or otherwise be destroyed by the act of God. If it were so, I apprehend very few bonds would be given. The sound interpretation is, that the surety engages for the defendant that he shall not make way with the property, but shall produce it, if in being, so as to be liable to the plaintiff’s judgment. He undertakes to secure the plaintiff against the fraud or other misconduct of the defendant, and also in aid of the intention of the statute, against the claims of other creditors; that the plaintiff shall not be in a worse condition after recovery, than if his right were tried at the instant of conversion, except only the casualties which may destroy the property. Against these it would be monstrous to say that he undertakes to insure the plaintiff. The rules for the construction of conditions are well settled. “ If the condition he possible at the time of making it, and afterwards become impossible by the .act of God, the act of the law, or the act of the obligee himself, then the penalty of the obligation is saved; for no prudence or foresight of the obligor could guard against such a contingency.” 2 Black. Com. 341. “ If a man be let to main prize, it is a good plea at the day for the manu captors to say, that he who was let to main prize was dead before the day. If the condition be that the obligor shall enfeoff the obligee at such a day, and before the day the obligor die, ;md the land descend on the heir, the condition is become impossible by the act of God, and the performance thereof is excused. One devised to his daughter, on condition that she should marry his nephew on her attaining twenty years of age — and the nephew died young, so that she could not comply — it was held that the condition was not broken.” Bac. Abr. Tit. Condition. So here, if the negpoes were to die before the day of trial, the condition would become impossible by the act o,f God. And the condition might become impossible by the act of the law. Suppose a slave to commit a capital offence pending the trial or suit, .and on conviction he should be executed ; the performance of the condition would be excused. A slave is an intelligent, rational being, subject to the influence of like passions with their masters and owners. If one who is the subject of an action .9/ trover, and for whose delivery a bond has been given, on a sudden affray with a fellow slave is killed, or if he commit suicide, although such an event perhaps c,ould not be regarded as the act of God, yet it would be such a casualty as would excuse the performance of the condition. It has been held in our courts that the owner of a steamboat, as a carrier, is not liable for a slave who remains below during the passage and is drowned ; 4 M’Cord, 223. But I do not mean to decide moré than the distinct question presented, whether the negroes can be surrendered at thé time of trial in discharge of the bond. If deaths haVe occurred before this, the question of the liability of the surety becomes a distinct one from that now before the court, and may lead to a separate discussion. And this leads me to réfer to the distinction which I threw out during the argument, between a proposition to surrender to the court at the trial, and a surrender at any indefinite time before. I thin¿ such a distinction is well founded. This is said to be a contract between the surety and the sheriff, affording a certain security, by bond, which is a personal contract, to the plaintiff: and the argument is, that the court Cannot change the security. Now, this seems to me to be pelilio principii: for the security is not changed, either by surrender before or at the trial — a new surety is not substituted. The thing intended to be secured is substituted in place of the contract to secure. The contract is executed by the delivery — and the plaintiff is placed precisely on the the ground most for his benefit, at least in case of a delivery at the trial. But in case of a proposition to surrender at an indefinite period before trial, it may be doubted whether the court would interfere to compel the sheriff to receive the property ; not denying that such a delivery, if accepted by the sheriff, would be a good plea in bar to an action on the bond. The objection raised as to expenses and safe keeping, would be addressed to the discretion of the sheriff. The delivery to him, I apprehend, would not save the defendant from liability for hire, but for this the surety is not liable. The argument, however, that such a delivery to the sheriff, before trial, would be virtually a delivery to the plaintiff, and a discharge of the action, is not without plausibility, and such a course might lead to embarrassing difficulties. But I perceive none in the course now pioposed. The same question of identity which is now suggested, must have arisen when the sheriff was called on to take the security, for he must then have been satisfied, in order to assess their value, that he might determine the amount of the penalty. It must also arise again, when the execution comes to be satisfied after judgment; and the difficulty is now no greater than it was before and will be again.
      
        This case has been before the Court of Appeals, on the question formerly tóáde, whether the surety Could discharge himself fey a sutrender of the principal. Thé learned judge, who delivered the opinion, threw out an intimation that the surety might discharge himself by delivering the property, without further expression of his Views. That question was not distinctly made — and, although, in geneial, Ido not feel bound by a vague dictum thrown out in argument by that court, and am'duly impressed with the importance of not professing to decide any question not distinctly involved and directly made, yet the opinion of the learned judge is entitled to great consideration — arid I am pleased to have it in support of my own deliberate judgment.
      In order, therefore, to prevent irreparable mischief to the defendant, which would ensue from a construction which would place the plaintiff in no better condition : if the trial proceeds, I shall permit the bond to be cancelled on the delivery of the negroes.
      
        Note. — The plaintiffs acquiesced in this decision without appeal.
    
   Curia, per

Evans, J.

The object of the Act of 1827, was, ho doubt, to prevent the removal of the property, and to compel its production for' the payment of such damages as the plaintiff might recover in his actios! of trover. But to entitle the plaintiff to the benefit of this new remedy* it was thought expedient to require him to give security that he would not use it for any unlawful purpose — and jf he did, he and his securities should answer for any damages which the defendant might sustain by the plaintiff's unlawful conduct in suing out and prosecuting his action, If the Legislature intended to give the defendant a new remedy, and to subject the plaintiff to a liability for all incidental expenses which the defendant might incur in defending himself against the plaintiff’s action, the use of the words “illegal conduct,” was very inapplicable to such an óbject. By illegal, I understand something which the law prohibits ; eitid 1 have never before understood that a plaintiff’s conduct Was illegal because lié failed to establish his right of action on the trial of the case, I can place ■ho other construction on the Act than that the plaintiff shall give the defendant the guaranty of a bond with security to answer any damages which might be recovered in an action which by law the defendant could sustain against him arising out of the action of trover. I do not think it necessary* and it is often improper, to attempt an exposition of ah Act of Assembly without the benefit of a full argument on all the points Involved. It is, in general, sufficient to decide the questions involved in the case : yet, I may he permitted to remark, that the construction which Í püt oh the Act, does not render it imperative. In general, the courts áré open to all who conceive themselves injured, and all may lawfully bring therr complaint^ before the court for legal adjudication. The only legal éohSequence of failure is the payment of such costs as the law allows : yet I need not quote authority to prove that over and above -this liability for costs, if the plaintiff, knowing his action to be false and unfounded, of jnere malice, shall cause the defendant to be arrested and subjected to loss and injury, an action on the case will lie. It will not be sufficient to prove merely that the verdict or judgment was rendered in his favor.

The motion is.refusej.  