
    NOVEMBER TERM, 1844.
    Morris Emanuel & Richard Barnett v. William Laughlin.
    E. & B. sued out an attachment against J. E. B., and B. & L. executed a bond to E. & B., conditioned that J. E. B. should appear at the Circuit Court and answer the plaint of E. & B., and abide by and pay and satisfy any judgment that might be rendered against him; held, if the bond was intended as a contract between the parties, that E. & B. might sue and recover thereon against the obligors, or either of them, on J. E. B.’s failure to comply with the conditions of the bond.
    A plea of general performance to an action on a bond with conditions, when the declaration sets out the conditions, and assigns special breaches, is bad on demurrer.
    E. &B. sued L. on a bond executed by B. & L. in favor of E. & B., conditioned that J. E. B. should appear at the Circuit Court and answer the plaint of E. & B., and abide By and pay and satisfy any judgment that might be rendered against him; E. pleaded that at the time of the rendition of the judgment against J. E. B. he was amenable to the process of the Circuit Court, and that E. & B. failed to sue out a ca. sa. and arrest his body, &o.; held, that the plea was no answer to the declaration, and was therefore bad on demurrer.
    Appeal from the Circuit Court of Warren county.
    The declaration in this case is debt upon bond, in a penalty'of fourteen hundred and eighty-four dollars and seventy-eight cents, with the following conditions : —
    “ The condition of the foregoing obligation is such, that whereas the abovenamed Emanuel & Barnett have sued out a writ of attachment against the goods and chattels, rights and credits of James E. Bosbyshell; and whereas Charles Whitehall, an acting constable of Warren county, hath levied said attachment upon certain goods and chattels claimed by the said William Bosbyshell: now, if the said James E. Bosbyshell shall be and appear before the Circuit Court of the county of Warren at the next term thereof, and shall then and there answer the plaint of the said Emanuel & Barnett, and then and there abide by the judgment and decree of said Court, and pay and satisfy any judgment or decree rendered against him, together with all costs and damages that may be decreed by said Court,’ then and in that case this obligation to be void ; else to be and remain in full force and virtue in law.” This bond was signed by William Bosbyshell and William Laughlin. The declaration averred, that William Bosbyshell was a non-resident, and therefore not sued. William Laughlin was the only defendant.
    -After reciting the bond and its conditions, the declaration avers, that at the April term, 1841, of said Warren Circuit Court, after regular continuances to that term, the plaintiffs recovered a judgment against'the said James E. Bosbyshell for eight hundred and eleven dollars and twenty-three cents damages, and eleven dollars seventy-five cents costs ; that execution, according to, law, issuing upon this judgment, was returned nulla bona. Whereupon the plaintiffs averred, that the defendant had not kept the conditions of his bond, but had broken the same in not paying or satisfying the judgment against James E. Bosbyshell rendered as aforesaid, of which the defendant had due notice.
    The breach of the bond is declared in jhe ordinary form, and concludes as usual.
    The defendant appeared and pleaded, first, non est factum. This plea was .not in issue, and therefore is not set out in this statement of the case.
    The second plea of the defendant, that the plaintiffs should not have their action, because James E. Bosbyshell did, at the return term of the attachment, appear and answer the plaint of Emanuel & Barnett, and did in all other things keep and perform the conditions and stipulations of the bond. This plea concluded with a verification.
    The third plea said actio non, because James E. Bosbyshell had not in anything to keep and perform the conditions of the bond, nor had they. ' ■ -
    The fourth plea stated, that the said James E. Bosbyshell was at the period of the rendition of the judgment, amenable to the'process of the Circuit Court of Warren'county, and that the plaintiffs had neglected to sue out a capias ad satisfaciendum, to arrest the body of James E. Bosbyshell. Both of these last pleas concluded with verifications.
    
      The plaintiffs demurred to the second, third, and fourth pleas specially. 1. Because neither of them was responsive to the declaration. 2. The declaration assigns special breaches, and the second and third pleas merely aver general performance. 3. The plaintiffs cannot reply without re-averring their breach already assigned. 4. The second and third pleas conclude with verification, instead of to the country. 5. Because it was immaterial whether James E. Bosbyshell was amenable to the process of the Court or not, it did not affect the defendant’s liability on the bond, 6. The power to sue out capias ad satisfaciendum was taken away by law.
    The Court below overruled the demurrer of plaintiffs, and gave judgment for the defendant. Whereupon the plaintiffs prayed an appeal to this Court.
    
      Smedes & Marshall, for appellants.
    The only questions presented in this cause arise under the pleadings. To the second, third, and fourth pleas, the plaintiffs in the Court below demurred. The Court overruled their demurrer, and gave judgment for the defendant, without saying on which of the pleas. All three we think are bad. The fourth is bad, because it is immaterial whether James E. Bosbyshell was amenable to the process of the Circuit Court of Warren county when the judgment was rendered against him on the attachment, or not; nor does it matter whether the plaintiffs neglected to sue out a capias ad satis-faciendum and have his body arrested, or not; the conditions of the bond sued On do not require them to sue out such a writ and arrest his body, and the law forbids it. The plea does not answer any part of the plaintiffs’ declaration, nor offer any good reason for the defendant’s failure to comply with his bond.
    The third plea is bad, because it is not responsive to the declaration ; it does not pretend to answer the whole, nor. any of the' breaches assigned ; nor does it aver anything, but simply alleges, that James E. Bosbyshell and the defendant “ did not fail to keep and perform the conditions of said bond,” &c. It avers no fact, presents no point upon which the plaintiffs could take issue, nor join in any of the issues rendered by the plaintiffs. Its language is wholly negative, and it should therefore be negatived as a good plea. It could only be construed at best to be a plea of general performance. The second plea we also tbink bad, because it is a plea of general performance without pretending to answer the special breaches assigned in the declaration. Had the plaintiffs simply declared on the bond, without setting out in the declaration the conditions annexed and assigning particular breaches, this plea would have been good ; and the plaintiffs would have had to set out the conditions annexed to the bond in their replication, and then assign breaches. But they have chosen to pursue -a different course, and havd assigned particular breaches in the declaration ; and, in such a case, all the books hold that a plea of general performance is insufficient. See 2 Johns. R. 413; 4 Littell, 280 ; 5 Monroe, 211 ; 1 Greenl. 190; 4 Gill & John. 395; 2 Starkie’s Evidence, 481. The reason is palpable ; the plaintiffs could not reply to such a plea without repeating their declaration, and re-assigning the same breaches. But it was argued in the Court below, and that was the main ground relied upon, that the plea avers, “ that the said James E. Bosbyshell did, at the return term of the attachment in said supposed writing obligatory mentioned, appear and answer the plaint of the plaintiffs,” &c., which appearance being admitted by the demurrer, constitutes a valid defence to the action. And the case of Garrett v% Tinnin, decided by this Court, is relied on to sustain that position. • Had this case turned, in our opinion, on the same question involved in that, this Court had never been troubled with it. The cases we think widely different. The inquiry in that case was, “ how, since the act of 1810 abolishing imprisonment for debt, the defendant may discharge the attachment, and release the property upon which it has been levied ?” In this case the inquiry is, not how the defendant may discharge the attachment, &c., but whether third persons, strangers who voluntarily, without the request or knowledge of the defendant, execute their bond to the plaintiffs, obligating themselves to ‘‘pay and satisfy any judgment or decree that might be awarded against the defendant,” &c.; whether these strangers shall be compelled to comply with this bond ? In that case, the property was replevied by the defendant; in this, it was delivered to strangers under a special contract between them and the plaintiffs, to which the defendant was neither a party nor privy. In that case, the bond was executed by the defendant in the attachment, and his sureties ; in this, it is given by persons whose interest is adverse to the defendant’s, not jointly with him and as his sureties, but alone, in their own names, and for their own use. In that case, one of the Judges says, “ the bond to the sheriff mentioned in the 15th section (of the attachment law) is little else than a bail bond,” and'treats the bond in that case as a bail bond ; when, in this case, the bond sued on is neither such a bond as is mentioned in the 15th section to be taken by the sheriff, nor a bail bond. The property was not replevied by James E. Bosbyshell, the defendant in, the attachment; he gave no bond of any kind, nor were William Bosbyshell and William Laughlin his bail. They could no more before the act of 1840, than they can now, surrender him up to the custody of the sheriff or the law, and be discharged from further liability on their bond. They were not his sureties, he did not ask them to execute the bond, he was not a party to it, nor could they at any time have controlled his person, nor had any claim whatever against him, on account of its execution by them. The bond in this case is not given to the officer, but directly to the plaintiffs. Indeed it is difficult to perceive any resemblance between the twjp cases. Why is it, that since the act of 1840, the appearance and plea of the defendant in an attachment, discharges his sureties in the bail bond ? It is because that act takes away from the bail the right they previously had by law to surrender the body of their principal whenever they thought proper ;■ and because, it also takes away the plaintiff’s right to run his ca. sa. against the defendant; without which, and a return of non est inventus being first made, he could not proceed against the bail at all. These reasons do not apply to this case ; for we repeat, that William Bosbyshell and William Laughlin cannot be regarded as bail or sureties in any light of J ames E. Bosbyshell, nor could they under any law, before or since 1840, have delivered him up to the custody of the law. The object of this bond was not merely, nor chiefly, to insure the appearance of the defendant in the attachment, but the intention was to bind the obligors to “pay and satisfy the judgment of the Court, provided the defendant in his attachment did not.” This intention, we think manifest, not only from the face of the bond itself, but also from the fact that it was executed onjhe “ 12th March, 1840,” since the act of 1840 abolishing imprisoment for debt, when the property attached would have been surrendered to defendant without any bond, upon his appearing and simply pleading to the cause. We do not deny, however, that if James E. Bosbyshell had given either a re-plevin or special bail bond, with these obligors as his sureties, and afterwards appeared and pleaded to the action, his sureties would have been discharged. But did he do so ? We answer, No. But this defendant and William Bosbyshell, unasked by, and/or aught we know, without the knowledge of James E. Bosbyshell, went forward and voluntarily executed the bond sped on, and had the property attached delivered to them.
    Now suppose the judgment of the Circuit Court be affirmed, then they will have made a clear profit of the whole of the property. Emanuel & Barnett will have lost their debt, and James E. Bos-byshell his goods. Will this Court permit gentlemen thus to speculate and profit by their own fraud ? If it be contended that the bond was taken by the officer, and he had no right under the statute to receive it, — we answer, that the plaintiffs might have complained of that, but surely the obligors cannot. They will not be heard to say, We got the property, but as the officer had no authority to receive such a bond as we gave him, we will neither return it nor comply with our bond. If the plaintiffs choose to accept the bond, and it be not forbidden by law nor against the public policy, the obligors are bound by it, whether the officer had a right to take it or not; not as a statutory bond, but under the Common Law. The cases are numerous where bonds have been held to be good at Common Law, though not taken in conformity with the statute; and the obligees have frequently been permitted to recover on them as Common Law bonds, after motions have been made under the statute for judgment and failed. See 3 Call, 523 ; 1 Wash. R.-367 ; 5 Randolph, 696 ; 4 Litt. 235 ; 2 Bibb, 199; and many' other authorities might be cited if necessary. But the correctness of the doctrine will not, we presume, be disputed. The reason assigned in all the cases is, “ that a party will not be permitted to take advantage of his own wrong.”' If the bopd be voluntarily given for a valuable consideration, if not forbidden bylaw, nor against the public policy, whether it be good as a statutory bond or not, it will be enforced at Common Law. See the cases in Bibb and Littell, cited above. If such is the law, how can William Laughlin escape liability on the bond in this case. He certainly gave it voluntarily, and received a valuable consideration, and it was neither forbidden by law nor against public policy. We think, however, it is a bond given directly to the plaintiffs, accepted by them, and there can be'no doubt that it is binding on all the parties. Suppose, when the attachment was levied, and the goods in the possession of the officer, William Bosbyshell and William Laugh-lin had gone to the plaintiffs, and agreed with them to pay their debt in cash, if they would instruct the officer to deliver the property to them, Bosbyshell and Laughlin ; no one would have doubted their perfect right to do so. ,Or suppose, instead of paying the money in hand, they had deposited it in bank, to be delivered to the plaintiffs upon the condition that they recovered a judgment against James E. Bosbyshell, and he failed to pay if, or bad given their note to pay the money upon the same condition ; it would hardly be contended, that upon the recovery of the judgment aud the failure of James E. Bosbyshell to pay, the plaintiffs would not have an immediate right to the money in the first case, and to recover on the note in the second. Yet it is- difficult to.discover wherein either of the supposed cases differ in principle from the one under consideration. If they could make themselves liable absolutely, they surely could do so upon any conditions that might be agreed on.
    If the case of Garrett v. Tinnin does not, and we feel confident it does not, decide the questions involved in this, then Bosbyshell and Laughlin, having obtained, and, from all that appears, used the goods upon the faith of a bond executed voluntarily in their own names, and not as sureties or bail of James E. Bosbyshell, ought, we think, to be held liable on that bond ; and the simple appearance and plea of James E. Bosbyshell at the return term of the attachment, should not release them. If this view be correct, then the second plea of the defendant is necessarily bad, and the demurrer to it ought to have been sustained.
    
      
      J. S. Yerger, for appellee.
    The action in this case is debt brought upon a bond in the following words, viz.
    “ Know all men by these presents, that we, William Bosbyshell and William Laughlin, 'are held and firmly bound unto Emanuel & Barnett, in the just and full sum of fourteen hundred and eighty-four dollars and seventy-eight cents, for the payment of which well and truly to be made, we bind ourselves, our -heirs, executors, and administrators firmly by these presents, sealed with our seals, and dated this 12th day of March, 1840. The condition of the foregoing obligation is such, that whereas the above named Emanuel & Barnett have sued out a writ of attachment against the goods and chattels, rights and credits of James E. Bos-byshell ; and whereas, Charles Whitehall, an ordinary constable of the county of Warren, hath levied said attachment upon certain goods and chattels, claimed by the said William Bosbyshell; — now, if the said James E. Bosbyshell shall be and appear before the Circuit Court of the county of Warren, at the next term thereof, and shall then and there answer the plaint of the said Emanuel & Barnett, and then and there abide by the judgment and decree of said Court, and pay and satisfy any judgment or decree awarded against them, together with all costs and damages that may be decreed by said Court, then and in that case the obligation to be void, else to be and remain in full force and virtue in law.
    “ Test, Wm. Bosbyshell, (seal).
    “ W. H. Hunt. Wm. Laughlin, (seal).”
    The declaration avers the recovery of a judgment by Emanuel & Barnett against James E. Bosbyshell, and assigns for breach of said condition, that James E. Bosbyshell did not pay and satisfy said judgment with all costs and damages, or any part thereof.
    The defendant pleaded, 1st, non est factum, in which issue was joined. 2d. That James E. Bosbyshell at the return term of said attachment, appeared and answered the plaint of Emanuel & Barnett in that behalf, and in all other things did keep and perform the conditions and stipulations- of said bond ; which plea concluded with a verification. 3d. That the said James E. Bosbyshell and the defendant have not failed to keep and perform- the conditions of said bond. 4th. That at the rendition of the judgment, and afterwards, the said James E. Bosbyshell was answerable to the process of the Circuit Court of Warren county, and that plaintiff had failed to sue out a ca. sa. to arrest his body. To the three last pleas the plaintiffs demurred. Upon the trial of the demurrers the Court below gave judgment for the defendant, from which judgment this writ of error is prosecuted.
    The counsel for the plaintiffs in error assume that the second, third, and fourth pleas are bad, both in form and substance, and that the demurrers were well taken. The third plea is certainly bad in form and substance, and is no answer to the action. .If the bond sued on is a replevy bond in the nature of a special bail bond under our statutes, the second and fourth pleas are good, both in form and substance.
    It is objected, that the pleas conclude with a verification, and not to the country, and that for this they are bad. Both pleas introduce new matter, and according to the rule of pleading, should so conclude. ' 1 Chitty’s PI. 590; 1 John. Rep. 92; 2 Tei;m Rep. 576.
    It is next objected, that they have no substance. If the bond sued on is in the nature of a bail bond, they do constitute a defence to the action. Before proceedings can be taken against bail, the plaintiff is compelled under our statute to take out a ca. sa., which sustains the fourth plea as a bond to the action. Under our law the appearance and plea of the defendant discharges the bail. See 7 How. Rep. 465. This sustains the' second plea.
    It is next objected, that the second plea does not set out the particular act of performance of the condition of the bond, amounting to a discharge, and does not reply to the breaches assigned in the declaration, and leaves nothing for the plaintiff to reply but to deny and reassign the breaches of the declaration. I apprehend the counsel err in this view of the case. The plea sets up the performance of a condition of the bond as a discharge, the non-performance of which is not asssigned as a breach of the condition of the bond in the declaration, and avers a performance of all the other conditions of the bond. The plaintiffs should have replied by negating the performance of this condition and all others, and concluded to the country. The Court will readily perceive, that the replication could have been so framed without devolving upon the plaintiffs the necessity of reassigning the breaches in the declaration.
    This bond being a replevy bond, in the nature of a bail bond under our acts of assembly, in form, when taken, the appearance of the defendant and his plea discharged the attachment, and of course the bail. 1 How. Rep. 465.
    But whether the pleas be good or bad, the demurrers go back to the declaration, and upon its inspection the Court will perceive that the plaintiffs had no cause of action. The bond sued on was in the nature of a special bail bond, and void since the passage of the act of 1840. 1 How. Rep. 465.
    But it is urged that this is not a bail bond, but simply a Common Law bond, because not made payable to the officer who levied the attachment, but to the creditor. This is certainly going for the shadow and not the substance of the transaction, and is a construction of the statute which it seems to me will certainly not prevail in this Court. But suppose this should be the opinion of the Court, what right do the plaintiffs show to recover on the bond ?' Now it seems to me, to sustain any action upon an agreement, sealed or unsealed, a consideration must be shown. On parol contracts the consideration must be averred and proved. On sealed instruments, it is presumed the seal imports it; yet in each case a failure or want of consideration, or its illegality, can be made to appear. Now in this case both the illegality of the consideration and the want or failure of it appear in the declaration. If the property levied on was that of James E. Bosbyshell, his appearance discharged the levies and defeated the consideration of the bond. If it was not -the property of James E. Bosbyshell, the levy upon it by the officer was a trespass, his taking and holding illegal, and its surrender could furnish no consideration from the plaintiffs for the bond sued on,
    The condition of the bond does not recite the property to be that of James E. Bosbyshell, or that it was surrendered as his by the constable. It expressly shows that the property levied on was claimed by William Bosbyshell, and if it proves anything from that, he gave the bond to retain possession of his own property. If the bond was not good as a replevy bond, it did not discharge the levy. James E. Bosbyshell’s appearance did that. All that the law intended the plaintiffs to have, was attained by their attachment, viz. the appearance of the defendant. If the property levied on was not the subject of levy for James E. Bosbyshell’s debt, the bond would be illegal for duress of goods, and void for illegality of consideration. 1 Bay. Rep. 470 ; 2 ib. 211.
    The plaintiffs had no property, interest or possession of the goods which they surrendered, to form the consideration of this bond. If the levy was good, it vested the goods in the officer, and not in the plaintiffs. If the bond was bad, he is liable to them. The appearance and plea of James E. Bosbyshell would be a good answer to the action against him. Why shall it not be good as to those who stand in his place ? By the statute if the bail bond be bad, the sheriff would be bail. If the appearance and plea of the defendant would discharge the bail, had the bond been good, it will discharge the officer who simply stands in their shoes.
    It would be a strange thing to say that the officer is not liable as bail, because the levy is discharged by the appearance of the party, yet that the bond is binding, which only was for the possession of the thing levied on.
    Now the plaintiffs, when the bond was given, bad no possession of the property levied on, made no surrender of it, had no claim to it. The consideration could not therefore come from them. From whom then did it come ? From the officer ? He had no right to take even a good bail under the act of 1840, how then can it be said that a bad one shall be made to inure to the benefit of the plaintiffs, and give them more than they could get under a good one. From all that appears upon the bond sued upon, the consideration of the bond was from the officer, not the plaintiffs. That consideration was founded on an illegal act, and will not even for him be enforced, much less for the plaintiffs. Did the plaintiffs surrender for the bond anything that they possessed or had a right to under their attachment. The law only gave them the remedy to obtain the defendant’s appearance. This they obtained. They have therefore lost nothing, and surely can claim nothing in this action.
    
      
      W. C. Smedes, in reply.
    It is undoubtedly true, that the, demurrer of the plaintiffs to the defendants’ pleas, reaches back to the declaration, and if that is bad, the Court below was fight in rendering judgment thereon for the defendants.
    That the defendants are driven to take this position in this Court, to abandon their pleas and assail the déclaration, is a tacit admission on their part, that the pleas are bad, that the Court below erred in upholding them, and that unless the declaration proves faulty, the judgment must be reversed.
    The declaration is said to be bad ; 1st. because the bond sued on is said to be in the nature of a special bail bond, and void since the passage of the act of 1840. This is clearly a misconception of the -character of the bond ; it has none of the requisites of a bail bond or its peculiarities. It is payable to the plaintiffs, and not to the officer. It is not made by the defendant in the attachment, but by a stranger, voluntarily executing the bond to the plaintiffs, and agreeing to pay the judgment that .might be awarded against James E. Bosbyshell at the suit of the plaintiffs-in the attachment against him. The case is simply this: Emanuel & Barnett sue out an attachment against James E. Bosbyshell, which is levied on property claimed by William Bosbyshell, who, to get possession of the property levied on, unites with William Laughlin in the execution of this bond to the plaintiffs in the attachment, and agree to pay whatever judgment the Court may render in said attachment suit against James E. Bosbyshell. If this be a bail bond, or in the nature of a bail bond, I am at a loss to know how any bond with conditions is to be distinguished from a bail'bond.
    But, 2d. It is said this bond is without consideration, and therefore void ; or rather, that the consideration- apparent on the face of the bond, for its execution, is 1st, illegal, and 2d, has failed.
    As to these points. It is said the property levied on was either the property of James E. Bosbyshell, or not. If his, his appearance discharged the attachment, and therefore the consideration failed ; if not his, that the levy was illegal, and therefore the consideration was illegal. This is the argument fairly stated. In a sealed instrument, it is not necessary to. set out the consideration ; the seahalways imports a sufficient one, until the insufficiency has been shown. The consideration of this bond, besides what appears on its face, may have been ample aliunde; many all-sufficient considerations might be devised, but we will not speculate out of the record, though in this case it would be perfectly proper to do so.
    H'ow can the appearance and. plea of James E. Bosbyshell to the attachment of Emanuel & Barnett, happening long subsequent to the execution of the bond, and of course long after the consideration which induced its execution, cause a failure of that consideration ? Had this appearance and plea been made before the execution of the bond, there might be some plausibility in the argument, that jhe property being discharged by that appearance and plea by operation of law, the bond would be without consideration. As it is, that appearance and plea was one of the very conditions of the bond upon the failure of which the obligors therein were to be liable, and of course could not have formed the consideration of the bond.
    But it is said the consideration exhibited in the bond, inducing its execution, is an illegal one, if the property levied on was not the property of James E. Bosbyshell. The validity of this position is readily tested in this way. Admit the property levied on had been claimed by William Bosbyshell as his, and that in point of fact it was his ; but suppose, that in order to get possession of his property, and prevent the delay and vexation of a trial of his right to the property, he should say to'the plaintiffs, Discharge your levy on these goods, and I will pay your debt, — and the plaintiffs should withdraw their levy and the claimant pay the debt; would the consideration for the payment be an illegal one ? Or suppose, instéad of an absolute payment, the claimant had executed his note at twelve months to the. plaintiff, and-the levy had been discharged, and the goods'delivered to him ; could he afterwards plead failure of consideration, or illegal consideration ? Or carry it still further, and suppose the claimant asserts his right to the property, and issue is joined and a jury empannelled, but before trial, though the property be actually his, he prefers executing his note to the plaintiff, payable at an agreed day, to risk the uncertainty of a trial; is there anything in the policy of the law prohibiting such an arrangement and compromise ? I always thought iiintei'e$t reipublicm ut sit finis litium,” and no better mode of preventing a suit is known to me than paying the matter in controversy.
    How can these supposed cases be distinguished in principle from the present case ? Emanuel & Barnett sue out an attachment against Jambs E. Bosbyshell, which is levied on property claimed by William Bosbyshell, non constat, whether the property of James or ' William. But William says, I will give you surety that if James does not appear at the Court and pay the judgment of the Court, I 'will do it — so gets the property. He avoids a lawsuit in the trial of the right of property, and he gets the possession of that which he claims. Either of which is ample consideration to uphold the bond ; and if there be any law declaring either illegal or void, I have yet to see it.
   Mr. Chief Justice ShaRKey

delivered the opinion of the Court.

The plaintiffs in error brought this action on a bond with a condition. The defendant pleaded non est factum, and also three special pleas, to which the plaintiffs demurred, and the Court overruled the demurrer; and it is to reverse this judgment that the plaintiffs have brought up the case. The defendant’s counsel admit that one of the special pleas is bad, but insist that 'the demurrer should be extended to the declaration, on the ground that it shows no cause of action, as the bond imposed no obligation. In this attitude of the case it becomes necessary to determine, in the first place, whether the bond is obligatory on the obligors, and if it is not, then there is an end of the action ; but if it is, then it will be necessary to say whether the breach assigned is well answered by the two special pleas. '

The bond is a joint and several obligation, made by William Bosbyshell and William Laughlin, the latter alone being sued, and is payable to Emanuel & Barnett, for the sum of $1484. It recites, “ that whereas, the abovenamed Emanuel & Barnett have sued out a writ of attachment against the goods and chattels, rights and credits of James E. Bosbyshell, and whereas, Charles Whitehall, an acting constable of the county of Warren, hath levied said attachment upon certain goods and chattels claimed by said William Bos-byshell; now if the said James E. Bosbyshell shall, be and appear before the Circuit Court of the county of Warren at the next term thereof, and shall then and there answer the plaint of the said Etnanuel & Barnett, and then and there abide by the judgment and decree of said Court, and pay and satisfy any judgment or decree awarded against him, together with all costs and damages that may be decreed by said Court, then this obligation to be void ; else to remain in full force and virtue.”

The difficulty lies in the question, whether this is a statutory bond, or only a contract between the parties. In the case of Garrett v. Tinnin, 7 How. 475, it was held that a bond given to replevy property attached for a debt due, differed but little from a special bail bond, and as special bail was abolished by the act of 1840, a defendant might replevy property attached by his appearance. As a consequence of that decision, the obligation of a bond given to replevy property attached, is discharged by the appearance of the defendant. But when an attachment issues for a debt not due, the debtor cannot release the property without giving bond to pay the debt. It is contended for the plaintiffs that this bond was given on a contract between the parties, whilst for the defendant it is insisted that it was giyen to replevy property, and falls within the decision of Garrett v. Tinnin.

The defendant, in attachment, by the 15th section of the statute, has two modes of replevying; he may appear and put in special bail to the action ; or he may give bond to the officer levying the attachment, that he will appear at Court and abide by and perform the judgment of the Court. Is this such a bond as the officer is empowered to take ? It is true, it is conditioned that James E. Bos-byshell should appear at the next term of the Court and answer to the plaintiffs’ action, and should abide by and pay the judgment; but the bond is not given by James E. Bosbyshell, nor by William Bosbyshell as agent, nor does it appear that it was given to re-plevy the property. The statute does not give to strangers the power to replevy on giving bond. William Bosbyshell, it seems from the recital, claimed the property ; but it is not a claimant’s bond. When the property attached is claimed by any other person than the defendant, such claimant, by the 22d section of the statute, may in-terplead without giving bail, but the property is not replevied. Now, although William Bosbyshell claimed the property, this bond, even if it,was authorized by statute, does not bear upon its face evidence that it was given to enable him to hold the property and assert his claim. Neither is this such a bond as we may suppose a defendant in an attachment not due would give. From its face it is impossible to say for what purpose it was given, if designed to be a statutory bond. True, we may conjecture, but it will not do to decide upon mere conjecture. It may have 'been given to replevy property levied on under an ordinary attachment, or it may have been given to release property taken under a judicial attachment; it is as applicable to the one case as the other, and not appropriate in either, because it is the bond of strangers, and the statute does not require the officer levying an attachment to deliver the property to any one who will give bond. It is usual in bonds given to replevy property attached, to recite particularly what sort of attachment it is, and for what amount^; but this bond does not do these things. It does not appear that any property was delivered up to the obligors ; altogether, therefore, we are unable to say, with anything like certainty, that this is a statutory bond, taken by an officer who had levied an attachment. Indeed, it does not appear that an officer had any agency in the matter ; it is made payable to Emanuel & Barnett. As we cannot say that it is a statutory bond, there is no ground for extending the demurrer to the declaration, because of the invalidity of the bond for want of authority to take it; we can only regard the bond then as a contract between the parties. Considered in this light, if it showed on its face, that it was given for an illegal consideration, then the demurrer might reach the declaration, but it does hot show for what it was given. We are quite as much at a loss as to its consideration as we are about its true character. This being the case, we must regard the seal as importing a consideration. Regarding it then as a private contract under seal, the only remaining question is as to the sufficiency of the pleas.

' The plaintiffs aver the recovery of a judgment against James E. Bosbyshell, the issuance of an execution, and a return of nulla bona; and assign as a breach of the condition of the bond, the non-payment of the judgment and the costs.

In the second plea, the defendant avers that James E. Bosby-shell appeared at the return term of the attachment and answered the “ plaint, ” and in all" other things kept and performed the conditions of the said writing obligatory. By the third plea, the defendant avers that said James E. Bosbyshell has not nor hath the defendant failed to keep and perform the conditions of the writing obligatory. These pleas amount only to general performance, which is bad to a declaration on a bond with conditions, in which special breaches are assigned. The plaintiffs could not reply to these pleas except by repeating the breach already assigned. The pleas are bad in not showing time, place, and manner of performance.

By the fourth plea, it is averred that the said James E. Bosby-shell was, at the time of the rendition of said judgment, amenable to the Circuit Court of Warren county ; but that the plaintiffs wholly failed to sue out a capias ad satisfaciendum on said judgment. This is not a valid answer to the declaration, and is therefore bad. ■ The demurrer then to these pleas should have been sustained ; for which reason the judgment must be reversed, and the cause remanded. And we suggest the propriety of allowing the defendant so to amend his pleading as to show fully the nature and object of the bond sued on, and whether it was valid or not. If it was in reality a replevy bond, given on levying an attachment, then all that was obligatory 'on the defendant was to appear and plead to the action.  