Swindler v. O'Connor , 31 S.C.L. 24 ( 1845 )

Curia, per Butler, J.

It cannot be pretended but that the bond in this case is good for some purpose. It is not void; for it is an obligation to the sheriff, or his assignee, in express terms, for the sum of eighty-five dollars. ' To some extent, the condition is equally explicit, to wit — that the principal had been arrested on a ca. sa under which he had availed himself of the benefit of the prison bounds. It was a question of fact to ascertain whether he had complied with the express requisitions of the bond. That, of course, was dehors the bond, and had to be established by parol evidence. That being established, the next inquiry was, who was entitled to claim the penalty, or the damages intended to be secured by the penalty ? The capias had been taken out by some one. Was it not competent to shew, by the actual proceedings of the sheriff, on the process itself, as they appeared by entries duly made, who was the plaintiff in interest ? This was capable of much more certain attainment than the facts going to fix the liability. Indeed, the liability being fixed to pay the penalty, it was the interest of the defendant to have it reduced to the true and less amount than the penalty itself; and that could not be done but by the production of the ca. sa. under which the principal had been arrested. When that was produced, both the right of the plaintiff, and the extent of his recovery, were disclosed. Motion refused.

Richardson, O’Neall, Evans, Wardlaw and Frost, JJ. concurred.