This is an action commenced in the Court of Common Pleas on a bond given in claim and delivery proceedings, in a magistrate's court, in which the respondent, Hewlett, was plaintiff, the respondent, Harter, was constable, and the appellant company was defendant.
The defendant moved to dismiss the proceedings in the magistrate's court, on the ground of want of jurisdiction, as the summons was returnable within twenty-one days instead of twenty days. There is some confusion in the record, but the magistrate sustained the motion and dismissed the *Page 484 proceedings for want of jurisdiction and there was no appeal. The bond was for two hundred dollars and the appellant brought suit on the bond in the Court of Common Pleas. The following is the bond:
"Undertaking of plaintiff's sureties on claim of delivery of personal property.
"Whereas, the plaintiff in this action has made an affidavit that the defendant therein detains certain personal property in the said affidavit mentioned, of the value of one hundred and no dollars, and the plaintiff claims the immediate delivery of such property, as provided by law;
"Now, therefore, and in consideration of the taking of said property, or any part thereof by W.J. Harter, special constable of the county of Barnwell, by virtue of the said affidavit, and the requisition thereupon endorsed, we, the undersigned, A.J. Harter, J.H. Hewlett, do hereby undertake to be bound to the defendant in the sum of two hundred and no dollars for the prosecution of the action of the plaintiff in the case of J.H. Hewlett v. Seaboard Air Line Ry.Co. against the defendant for wrongfully detaining the said property, for the return to the defendant of said property, or so much thereof as shall be taken, by virtue of the said affidavit, and requisition thereupon endorsed, if a return thereof shall be adjudged; and for the payment to Seaboard Air Line Ry. Co. of such sum as may, for any cause, be recovered in this action against plaintiff. Dated December 10th, A.D. 1902. J.H. Hewlett (L.S.), A.J. Harter. M.D. (L.S.)"
The complaint set out the bond and alleged:
5. "That on or about the 31st day of December, 1909, said cause was called for a hearing before said magistrate and was dismissed, and it was adjudged that the said property was wrongfully and unlawfully taken out of the possession of said Seaboard Air Line Railway, and it was adjudged that the same should be returned forthwith to it, the plaintiff herein." *Page 485
The case shows that the magistrate dismissed the proceedings, but did not order a return of the property. The Circuit Judge directed a verdict for the defendants (respondents) on the ground that no breach of the bond had been shown and the plaintiff appealed upon four exceptions, which will be considered as made.
Exception 1. "That his Honor erred in directing a verdict for the defendants when there was evidence that the condition of the bond set forth in the complaint, and introduced in evidence, had been breached, in that the property taken under the claim and delivery proceedings, by virtue of the affidavit in such proceedings, had not been returned to the Seaboard Air Line Railway as provided in said bond."
This exception should not be sustained. The bond was "for a return to the defendant of said property * * * if a return thereof shall be adjudged." There was no adjudication for the return, and, under the case of Elder v. Greene, 34 S.C. pg. 154, there could not have been. In this respect there has been no breach of the bond and this exception is overruled.
Exception 2. "That his Honor erred in directing a verdict for the defendants when the evidence tended to show that there had been a breach of the bond given in the claim and delivery proceedings, whereby J.H. Hewlett undertook to prosecute his action against the Seaboard Air Line Railway Company for wrongfully detaining the property taken in said claim and delivery proceedings."
This exception should not be sustained. Alderman v.Roesel, 52 S.C. 162, is not applicable here. That case says, at page 164: "Where the plaintiff abandons his action, fails to prosecute it, discontinues it on his motion, or where it is dismissed for want of prosecution, there is a breach of the condition to prosecute. * * * A voluntary discontinuance by him is no defense in such case." This case shows that the case was dismissed on appellant's motion. What action respondent, Hewlett, could have brought is not apparent. *Page 486 He certainly could not have brought a possessory proceeding for property already in his possession. Besides the breach alleged is "failure to return the property and not failure to prosecute."
There is not only no allegation of a failure to prosecute, but there is no evidence of such failure. The question was not made in the Circuit Court and can not prevail here.
Exception 3. "That his Honor erred in directing a verdict for the defendants because the complaint contained sufficient allegations to sustain an action for trespass for the wrongful and unlawful seizure of the cotton seed under the proceedings before the magistrate, and there was evidence tending to sustain the allegations of the complaint necessary to maintain this action, and, therefore, the case should have been submitted to the jury."
This exception should not be sustained. The appellant stood squarely on the bond. There was no motion to amend. The appellant claimed the right to possession and based his right on an order that was not and could not, in law have been made. The right to treat this as an action for trespass was not claimed in the Circuit Court and can not be raised here. Appellant is still relying on the bond. The change to an action for trespass would be such an entire change of the whole case that this Court does not feel warranted in allowing it.
The fourth exception not being considered in argument is deemed abandoned. The suggestion of respondent that this Court give judgment absolute for the four or five dollars admitted to be due can not be accepted, as the admission is only by respondent. The case shows that appellant claims more than that sum.
I think the judgment of this Court should be that the judgment of the Circuit Court be affirmed.
The Chief Justice concurs in the result. *Page 487