
    
      Carsten Vose, adm’r vs. R. S. H. Hannahan.
    
    Defendant in trover may be required to give bond, under the trover Aot, for the production of the property, and bail also.
    
      Before Frost, J., at Chambers, Charleston, August 9,1852.
    The report of his Honor is as follows:
    
      “ The affidavit of the plaintiff states, that he is the owner of eleven slaves, worth $4,500, which the defendant has converted ; and prays security under the trover Act. On this affidavit, the defendant was ordered by the Clerk of the Court to give bond in the penalty of $9,000, with security, for the production of the slaves, and also to give bail in the same sum.
    “ The case was heard on motion for an exoneretur on the bail bond; or that the amount of the bail should be reduced. The defendant had, before the motion, given the required trover and bail bonds.
    “ The motion for an exoneretur was refused. The object of the Act of 1827, is clearly expressed in its title, “ An Act to alter the law in relation to the action of trover.” As the law then stood, the judgment in trover changed the property. The defendant thereby, became legally entitled to the plaintiff’s chattels, and the plaintiff got instead, a judgment for damages. If the defendant was insolvent, the law awarded to the plaintiff a barren execution, and confirmed to the defendant the tortiously acquired property. In this respect only is ‘ the law in relation to the action of trover’ altered by the Act of 1827. The defendant is required to ‘ enter into bond, with sufficient security to the sheriff of the district, for the production of the chattels sued for, to satisfy the plaintiff’s judgment, in case he should recover against the defendant; and such specific chattel shall be liable to satisfy the plaintiff’s judgment, to the exclusion of other creditors.’ Trover was thus converted into an action to try the title to personal property; with security for its production, in case the plaintiff should recover. Bail process was incident to the action of trover, in common with all other personal actions, before the Act of 1827. By the Act it is not, in 'terms, taken away; nor should it be by implication. The Act'gives only a special security, adapted to the change which it introduced respecting the action of trover. The trover bond is not declared to be a substitute for bail, nor is it, in effect. The sureties to the- trover bond are not responsible for the costs of the suit, nor for the hire of the slaves, nor for the damages recovered. Ill case of the death of any of the slaves, or of their deterioration in value, whereby they may be insufficient to satisfy the plaintiff’s damages, the sureties to the trover bond cannot be held liable for the deficiency. Bowen vs. Coker, 3 Rich. 142. They are only bound for the production of the negroes sued for. The damages and costs may greatly exceed the value of the slaves produced, in conformity to the condition of the bond. If the action is brought for only one slave, and that one dies, pending the action, the trover bond is of no value.
    
      “ Judicial process for the recovery of property, debt or damages, is of no practical benefit which does not provide security for the plaintiff, (when it is necessary,) that the defendant shall appear and abide by the judgment in the cause. It would be a mockery of justice to tender to one, who is wronged, legal process for the redress of his injury, and deny him security against the defendant’s (when the litigation is ended,) removing himself and his effects beyond the jurisdiction and treating the judgment of the Court with contempt. The reproach would lie against the refusal of such security, for a part, as well as for the whole of the plaintiff’s recovery. A construction of the Act of 1827 should not be adopted, which would result in such a defeat of justice.
    “ The condition of the trover bond is not the same as the condition of the bail bond. The security it affords is not co-extensive with the damages, as a bail bond is. If it be objected that, in holding the trover bond to be a special security,.given in addition to bail, cumulative security is demanded; the reply is, that if the trover bond is held to be a substitute for bail, an insufficient security is afforded. If, in the construction of the Act of 1827, the alternative cannot be avoided of a cumulative or insufficient security in aid of justice, the former should be adopted. But bail is not a cumulative security to the trover bond. It is supplemental and provides security for the residue of the damages and costs which may not be satisfied by the production and sale of the slaves. There is no practical difficulty in the Court’s directing the enforcement of the respective securities in conformity with the legal liabilities of the parties. This view obviates the objection that a defendant cannot be subject to two arrests for the same cause of action.
    “ The amount of bail in an action of trover, when a trover bond is required, should not be fixed of course at the sum of the damages. It must depend on the circumstances of each case, and be discretionary. If the defendant had not already given bail, I should have reduced the amount of the bond.”
    The defendant appealed, and now moved this Court to reverse the decision of his Honor, Judge Frost, upon the following ground:
    That as the Clerk had no authority to grant two orders — one requiring the sheriff to compel the defendant to give a bond pursuant to the provisions of the trover Act — and the other to enter into a bail bond for his appearance; it is submitted, that his Honor should have granted the defendant’s motion.
    Munro, ¡Simonton, for the motion.
    
      Yeadon, McBeth, contra.
    
      
       6 Stat. 337; Aot 1839 § 20, 11 Stat. 76.
    
   Per Curiam.

This Court concurs in the opinion of the Judge below. The motion is dismissed.

O’Neall, Wardlaw, Frost, Withers, Whitner and Glover, JJ., concurring.

Motion dismissed.  