#### CHARLES CLARK vs. JOHN WALKER.

December 1842.

Upon a writ against one A., the sheriff took a bond, executed by the said A. and by one B. and conditioned that the said A. and B. should make their personal appearance &c., to answer &c., and then to stand and abide the judgment of the said court &c. Held that it was unlawful (by the act, Rev. St. c. 109, s. 19,) for the sheriff to take such abond, and that the bond was . therefore void

This is not the contract of bail in its terms, nor can it be inferred from the bond, that one is bail for the other, but each is alike bound to perform the judgment.

The case of Rhodes v Vaughan, 2 Hawks 167, cited and approved.

Appeal from the Superior Court of Law of Brunswick county, at Fall Term, 1842, his Honor Judge Dick presiding.

The following is the case as transmitted from the court below.

*182This was a proceeding by Scire Facias by the plaintiff against the defendant, as the bail of one John Polony, to which the defendant entered the following pleas, to wit: “Nultiel record, that defendant did not execute any bond as bail of John Polony — if he did execute any bond, the condition thereof was not for twice the amount of the debt, and not being conformable to act of Assembly, cannot be proceeded on by scire facias — if he executed any bond, it was a bond, the condition whereof was contrary to the act of Assembly, Rev. Stat. c. 109, s. 19, and, therefore, it was illegal and void.” The plaintiff produced and proved a paper writing, of which the following is a copy :

“■State of North Carolina, ? Brunswick County. \

Know all men by these presents, that we, John Polony and John Walker, are held and firmly bound unto William Hankins, high sheriff of Brunswick county, his heirs, exeq-Htors, administrators and assigns, in the sum of one hundred and fifty dollars, to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents — sealed with our seals, and dated this 19th day of June, 1838.

The condition of the above obligation is such, that if the above bounden John Polony and John Walker, do, and shall make their personal appearance before the justices of the County Court, to be held for the county of Brunswick, at the Court House in Smithville, on the first Monday'in September next, then and there to answer the complaint of Charles Clark, in a plea of trespass on the case to his damage one hundred and fifty dollars, and then to stand and abide the judgment of the said court, and not depart the same without leave had and obtained — that the above obligation to be void and of no effect — otherwise to remain in full force and virtue.

J. POLONY, (Seal.)

J.. WALKER, (Seal.)

Signed, sealed and delivered in presence of

S. A. Laspeyre.

*183The defendant objected to the reading of the said paper writing and its being received in evidence, upon grounds, as set forth in the pleas 5 but the objections were all overruled by the court. And the case being taken up upon the record by his Honor, he proceeded to overrule all the pleas of the defendant, and to render judgment against him. From this judgment the defendant appealed to the Supreme Court.

No counsel for the plaintiff.

Strange for the defendant.

Ruffin, C. J.

The court has been not a little embarrassed, as to the light in which this case is to be viewed, and the questions intended to be presented for our determination. The pleadings are so defective, and the proceedings so ir-regnlar, that we should be obliged to reverse the judgment 011 those grounds; for it would seem that there was no jury, but that the court decided the case upon proof of the bond by witnesses, and the reading of that instrument. On the other hand, the bond is not formally spread on the record on oyer, so as to found a demurrer or motion in arrest of judgment for any defect in it. We conjecture, however, that the real object was to obtain from the judge iu the Superior Court., and from this Court, an opinion upon the validity of the bond, as a copy of it is inserted in the record, and made a part of the case stated. We prefer, therefore, deciding the case upon that point, as involving the merits, rather than sending it back simply upon the bad pleading or error in the mode of trial.

It then appears by the scire facias in this case, that the defendant issued as the bail of one John Polony, in an action instituted against Polony by the present plaintiff The alleged bail bond is an obligation given by Polony and Walker to William Hankins, the sheriff of Brunswick, iti a certain sum, with the following condition : “that if the above bound John Polony and John Walker, do, and shall make *184 their personal appearance before &c. at &c. on &c., then and there to answer the complaint of Charles Clark, in a plea of trespass on the case to his damage $150, and stand a11^ abide by the judgment of said court, and not depart the same without leave, that then this obligation &c.”

We hold this bond to be void by force of the act, Rev. St. c. 109, s. 19, which makes it unlawful for a sheriff to take a tond from'any person in his custody, concerning any matter relating to his office, otherwise payable than to himself as sheriff and dischargeable upon the prisoner's appearance, and rendering himself at the day and place required in the writ, and his sureties discharging themselves as special bail of such prisoner ; and every other obligation taken by the sheriff in any other form or manner, by color of his office is made null and void. Were it not for the case of Rhodes v Vaughan, 2 Hawks 167, it might be much doubted whether a bail bond was good, which omitted in the condition a clause for the discharge' of the sureties as special bail; in which character only they have the privilege of surrendering the principal, or can avail themselves of his death or of the want of a ca. sa. But it was held in that case by a majority of the court, and we are not disposed to disturb the deck sion, that the rights of the bail were secured not merely by the words of the obligation, but by the law.; and that if it appeared by the bond that the parties stood in the relation of principal and bail, that was sufficient to require the court to allow the latter all the privileges of bail, and, consequently, to sustain the bond. It is quite clear from the language there used by the court, either that the bond must expressly contain the clause, in the words of the statute, for the discharge of the sureties as special bail, or that in some other way it must express the relation of the obligors in the bond to each other, as principal and bail; so that the law could adjudge the consequences. In that case the condition was, that J. Jennings, “ one of the above bounden should make his appearance &c. to answer &c. and not depart the court without leaveand that was held sufficiently to exhibit the relation of the parties. But in our case, upon a writ against Polony, the sheriff took a bond from him and another, that *185 they both should appear and answer the action, and stand to and abide the judgment of the court. This is not the contract of bail in its terms; nor can it be inferred from the bond that one is bail for the other. But both appear to be principals, and each is alike bound to perform the judgment. In other words, the bail is bound absolutely for the payment of the recovery, according to the tenor of this obligation ; which is directly contrary to the statute, and renders the bond void.

If we were sure that this was the point, on which the decision was made in the Superior Court, as upon a demurrer, we would reverse the judgment, and give judgment here for the defendant. But as it cannot be told certainly how the parties intended to raise the question,- we content ourselves with reversing the judgment and remanding the cause, that the issues may be tried or the parties replead and put the bond or any other matter on the record, which they wish to bring in review.

Per Curiam. Judgment reversed;