
    
      REAGAN vs. KITCHEN & AL.
    
    The performance of either of the conditions of a bond, discharges the obliger.
    
      Baldwin, for the defendants.
    From the record § it appears that previous to the 24th of March 1812, sued out of the Parish Court of Concordia attachment against R. Williams, one of the defendants. That the said attachment was levied on a negro man named Peter. That he was replevied by Williams and Kitchen, the qther defendant, was his surety in the replevy bond. That judgment was rendered on the attachment for the sum of S 721, 13 1-2, besides interest and costs. Thitt on the 21st of June 1812, an ex ecution issued on the judgment and on the same day a return was made by the sheriff of “no property found in the Parish,” On the 5th of August following, an alias fieri facias issued, and on the same day the negro replevied wa;s seized by the sheriff, and on the 13th of. October following was sold. But before the negro was seized, to wit. on the 1st of July in the same year Reagan sued out of the Parish Court of Concordia, an attachment against the present defendants, Kitchen and Williams, for the sum of g 500, the penalty in fhe replevy - bond and on the 9th of November 1813., judgment was rendered against them for that sum and costs of suit. These facts appear not only by the record, but also bv the statement of facts filed andsignedby the counsel on each' side.
    West. District.
    August 1814.
    These are numerous objections to the mode of proceeding, in the Court below.
    I. The return of the sheriff on the last attachment (from the proceedings on which this appeal is. taken) states that he seized a tract of .land, without saying to whonv.it belonged,, and does not say that he otherwise executed the writ, as the lays? requires. f .
    
    IÍ, It does not appear that the Court appointed! a person to defend Williams : conséquently the judgment is void as to him.
    III. The last petition was filed before any demand was made of the negro replevied and before the then plaintiff had taken the proper legal steps to obtain him. '
    IV. The replevy bond did not pursue the law, but contained conditions beyond its' provisions and so far Was void. The statute requires the condition to be “to defend such suit and to abide by the judgment of the Court.” This bond does not, stop here but goes on to require “that the obligors shall satisfy the judgment of the Court, or shall return the said negro man Peter •when thereto they may be required, or it shall become necessary to have the same 8tc.” '
    ' V. The first execution was returned the same day it was received by the sheriff. He ought to have held it the three days mentioned in the statute or made a demand, upon which the negro might have been delivered.
    VI. The negro was seized and sold under the second execution, which discharged the replevy bond.,
    VII. After the negro was received by the sheriff no action would lie upon the bond, and if suit was commenced before the delivering, from that mpment the cause of action ceased.
    VIII. Suit was brought for the penalty of the bond, without its going in any part discharge of the former judgment : whereas it ought to have been brought with reference to the former judgment and its amount received passed to its credit.
    IX By the manner this judgment is rendered, the ¡appellee has the full benefit of both judgments. See Domat'430, art. 15, 431, art. 18, -⅛- Black. Com. 303 4, Curia Filippica b. 2, chap. 2, art. 1, 8, tVashington 119. .
   By the Court.

This suit was instituted by Reagan in the Court below, on a bond, given to the sheriff of the Parish of Concordia, by R. Williams and the appellant in the penalty of S .500, with a condition, that Williams should abide the judgment which might be rendered against him in the Parish Court, in a suit by attachment, there pending against him, or that he should deliver a certain negro therein named, when required, or it should become necessary..

This bond, as insisted on by defendant’s counsel in the District Court, cannot strictly be considered as a' bail bond, taken in conformity to the act of the Legislative Council in such cases made and provided, the sheriff having inserted a condition in it, not required by the statute ; by which it appears that the parties bound themselves to do one of two things,- viz. to abide the judgment. or deliver the slave, and the security must be discharged on the performance of either.

’ It ⅛, perhaps, in this case unnecessary to enquire how far the sheriff is bound to give the three days notice on execution to defendants who re-1 side out of the state, to pay the money, before he levies, or returns the execution ; yet when it can be conveniently done, it would, be proper, that some step should taken to effect it; or at least that the execution should not be returned before the expiration of the three days. The defendant in execution; in the original suit of Rengan, vs. Williams., not having been notified of the judgment and execution, the hasty return made o| it on the same day on which it issued.,? are circumstances which do not strongly support a belief of fair and candid dealing on the part of the plaintiff in this transaction. But, independent of all these considerations, this Courtis of opinion that the surrender of the negro, for the delivery of which the appellant bound himself, and the acceptance by, the sheriff, being made previous to judgment rendered in the case, is sufficient to, discharge him from any obligation, arising out of said instru-. ment; the conditions being in the disjunctive, to abide die judgment or deliver the property. Otherwise the appellee will have a double remedy, and may recover twice on,the same cause, of action, viz. on the bond and by executing his original judgment, which would be unjust.

It is, therefore, ordered, adjudged and decreed that the judgment of the District Court be annulled and reversed, and that there be judgment for the defendants with costs.  