Antonio Collins, Plaintiff in Error, vs. Nicholas H. Mitchell, Defendant in Error, 3 Fla. 4

BALTZELL, J. This was an action of debt instituted by defendant in error against plaintiff as one of the securities on a forthcoming bond given under attachment process. The defendant filed three pleas which were demurred to, and the demurrer sustained by the Court. Leave was given to plead anew within sixty days, which however seems not to have been done,, and the case in this situation, was, as appears from the record,, submitted to the jury.

On the trial, the plaintiff gave in evidence the bond sued on, with other evidence,, whereupon “ defendant’s counsel moved the Court to instruct the jury that the plaintiff could not recover other than a merely nominal sum, without showing the value of the slaves replevied by other evidence than that offered by the replevin bond itself,, which instruction the Court refused-to give,, but instructed the jury that they should assume the half of the penalty of the bond to be the true value of the said slaves.” The propriety of this instruction is the only question presented by the record.

The bond in question is thus described in the condition : “ whereas Nicholas H. Mitchell has sued out an attachment against J. N. C. Stockton & Co. for $900, which has been levied upon certain slaves as the property of J. N. C. S. & Co., and the said J. N. C. S. & Co. wishing to replevy the said slaves, now if the said J. N. C.

S. & Co. shall cause the said slaves to be forthcoming to abide the final order of the Court, then the obligation to be void, else to remain in full force and virtue.” It will be perceived that this varies from the condition of the bond provided by the statute which is for “ the forthcoming of the property replevied to abide the final order of the Court.” If it had pursued the statute, the amount of the judgment being Ihe final order of the Court, which the security had undertaken to abide by, would probably form the criterion and rule of the damages for a failure to deliver the property.

The defendant’s engagement is not of this character, and he has a right to insist upon its very terms. He engages that the principals, the Stocktons, shall cause the said slaves to be forthcoming to abide the order of the Court. Now if the obligation had been complied with by delivery of the slaves, plaintiff would have been entitled to a sale of them under execution, and the appropriation of the. proceeds to his debt.

He is entitled to be placed in the same position by the failure which he would have occupied if the Stocktons had fulfilled their agreement, and this, in our opinion, constitutes the true measure of damages. Defendant’s liability, as that of any other security to such an obligation, attaches upon the return of the officer that the property attached is not forthcoming to abide the order of the Court, or that the defendants have no property in his bailwick to satisfy the execution. The value of the property at that time, with interest, would seem to be the appropriate measure of damages.

The case will then be reversed for this error, and the judgment set aside,, and a venire facias de novo awarded, with leave to each party to amend his pleadings, and the cause remanded for further proceedings, not Inconsistent with this opinion. We add that in case of another appeal, a copy of the entire record in the suit of Mitchell vs. the Stocktons be sent up, that this Court may, if required to decide the farther points in the case, be possessed of the entire facts necessary to a correct adjudication.