#### Governor, to the use of Arundell, v. Jones

From Carteret.

Tlie Sheriff is not liable in debt upon his official bond, for omitting to take bail when lie executes a capias in civil eases; but he must be proceeded against as builhy sei.fa.

This was an action of dell, brought on a Sheriff's bond against the Defendant, as security of a deceased Sheriff, and was heard below before Donnell, Judge. The breach assigned in the declaration wits, that the Sheriff, on a capias ad respondendum, duly issued to him, served the same, and took no bail bond. The Defendant demurred to the declaration, and the Court below pus tallied the demurrer.

*360 Hawks for the Plaintiff.

Tbe act of 1777', ch. 118,,'N R. prescribes the condition of a Sheriff’s bond, and it it not to be presumed that the. Legislature did not intend ,£() ma|iP ||ie condition co-extensiye with the Sheriff’? official duties; imleed the very general expression, “ and in all other things well, truly, and faithfully execute and return,” &c« sufficiently shews the anxiety of the Legislature, to provide the citizen with ample security for every possible violation of duty by a Sheriff. As by the same act prescribing this condition, it is made the duty of the Sheriff, on service of a writ, to take a bail bond, it is presumed that if legislative interference on this subject stops here, there can be no doubt of our right to recover on this bond, when the Sheriff has neglected to take bail; and this presents the enquiry, has the Legislature interfered to prevent? If it has, it must be by the act of 1777, ch. 115, sec. 16, and this act must expressly, or by fair inference, take away our right to sue on the bond. It is not contended that it does expressly— can it be fairly inferred that it was meant to do so ? The most natural and genuine way of construing a statute, (says Lord Coke,) is to construe one part by another of the same statute; for tiiis best expresseth the meaning of the makers : and a statute ought, upon tile whole, so to be construed, that if it can be prevented, nu clause, sentence, or word shall be superfluous, void or insignificant. Bringing to the examination of the act of 1777, ch. 115, sec. 16, these rules, what are its words ? 54 When any writ .shall issue, Ac. such Sheriff shall take bond, with two sufficient securities, in double the sum, &c. and shall return such bond with the writ; and its case the Sheriff shall fail or neglect to take such bail, or the bail returned be held insufficient, on exception taken- and entered at the same term to which such process is returnable, the Sheriff having due notice thereof, lie shall be deemed and stand as special bail, and the Plaintiff may proceed to judgment according to the rules herein *361after prescribed.” Who must take exception at the return term ? Who must give notice ? Not the Court., but the party interested. Is he then compelled to do so ? If he be, there is a strange inconsistency in the statute j for to what purpose is the privilege of excepting to bail for insufficiency allowed by the statute, if a Plaintiff is compelled to take the Sheriff for special bail, who, by waving been made special bail in twenty casos before-, it: most exceptionable for insufficiency ? If he be taken an special hail, a correct exposition of the statute will skew that he is personally responsible, as any other special bal? is, and not officially, and why take a bond 'with security} .for the benefit of the people, if they are compelled to report to ids 'personal responsibility ?' Again, if a case cats be shewn, in whic* , without a remedy on th«* bom!, ?, party guilty of no laches is perfectly rc-mi-dides.-;, he mast have redress on the bond. Suppose a Sheriff .-jorres » writ, takes a hail bond with insufficient, security, dk? before the return day, and his deputy returns it, as he must do — what remedy is there, save on the bond ? He cannot make a dead man special bail j his representa' ti jes cannot be brought in on set. fa. for the act allow?) a set. fa. only to the representatives of bail, and had the Sheriff lived be could nol have beca charged as bail before the return term, on exception taken, and after notice.

This question, it is recollected, lias been agitated be fore., and perhaps a case in 1 Ilayw. 224, may be considered as an answer to Ike positions hare taken, The objection there is, that the Sheriff is deprived of the right of surrendering the principal. This is begging- the qnos--¿ion. The point in controversy is, has he that rigiíí' against our will ? We say, bail only can surrender, and lie is not bail until we choose, by excepting after due notice, to make him so.

Gaston, contra,

relied on the case of Swepsam v. Whi~ tyherr, (1 Ilayw. 224/) and contended that the expres*362sions used in the act of 1777, ch. 115, sec. 16, “except Hon taken the same term,” and “ the Sheriff having due notice thereof,” applied to the case in which the Sheriff took insufficient bail, not to a case in which he took no bail.

Hall, Judge.

Upon the best considerations Í have given, this case, I do not think the Legislature intended that the Sheriff should be liable upon his official bond, for omitting to take bail, when he executed a capias in civil cases. They have declared, that in such cases “ he shall be deemed and stand as special bail, and the Plaintiff may proceed to judgment according to the rules thereinafter prescribed.” If the Sheriff was liable on his official bond for such omission, he would be deprived of the opportunity of surrendering the Defendant as other bail mayado. I think he ought to be proceeded against as bail. But if the Plaintiff cannot compel the Sheriff in that character as bail to pay the money, I am far from saying that the party has no remedy upon his official bond against his securities.

Henderson, Judge.

In omitting to take bail, the Sheriff does no wrong to the Plaintiff in the writ of ca-pias ad respondendum. All that the writ and the law requires is, that the Sheriff should have the body of the Defendant ready to produce, when the Plaintiff should demand it, to satisfy his recovery. Before any statute was made on the subject, the Sheriff was required to have the body of the Defendant at the return of the writ; and whether the Sheriff imprisoned the Defendant, or let him out upon bail, or without bail, it was nothing to the Plaintiff: the Sheriff was exonerated from all liabi - lity, if lie produced the body, nor was he excused by shewing that he let the Defendant out upon bail, however sufficient that bail might be; and the law remained the same in this particular, after the Sheriff was com-*363snamled, by statute, to let to bail those whom ho arrested on such process ; for the Sheriff’s liability remained the same, the bail was for his indemnity only. In the year 1777, the Legislature prescribed the. manner of taking bail, altered the nature of bail to the writ, and declared that all bail should be held and deemed special bail, and defined what they meant by special bail, by declaring that the hail might discharge themselves by surrendering their principal at any time before final judgment on sd. fa. At this samo time, it was enacted, that if he omitted to take bail, or took that which was insufficient, upon not'ce given at the first term, he should stand, as special bail. This notice was not necessary, as was contended in {lie argument wiien lie omitted to take bail, hut only in those cases where Ise took bail that was insufficient in the estimation of ike T Id a tin; and it was required that the Sheriff should have notice of the exception, that he might justify, that is, shew the bail to he sufficient: and in such case lie became bail, if he failed to justify : he was also required, by the same act, to assign the hail bond to the Plaintiff: thus was the whole law, relative to bail, altered- -1 here was no longer any distinction between bail to the writ, asid bail to the action $ the hail taken by the ¡Sheriff became bail to the .action, with this alteration, that the bail were not fixed with the recovery by the return of non est inventus to the ere. sa. but might discharge themselves by surrendering their principal before final judgment on the scire facias„ As the law now stands, there is no necessity of having the body at the return of the writ j for the object is completely answered by turning the bail to the writ into the bail to the action, be that bail the Sheriff, or any other person. The Plaintiff, therefore., is entirely uninterested in the fact, whether the Sheriff took, or omitted to take bail $ asid were this action sustained, it would deprive the Sheriff of one of the privileges of bail, which was certainly accorded to him by the statute, to-wit, the right *3640f surrendering bis principal: bat it was contended that' the Sheriff became bail at the election of the Plaintiff, which election was evidenced by giving notice; and to. prove this to bo the correct construction of the statute, it is asked, what would be done if the Sheriff should die after the arrest, and before the return term ? here there would be no person to whom notice could be given. In answer, I would say, that the law, which requires not impossibilities, would permit a departure from the words of the statute, and suffer the first term to be read the first term after it was physically possible for the act to be done. It is said, that by construction of the act, the Sheriff, who might be an insolvent, might impose himself as bail on the Plaintiff, against his will. It is admitted ; but for this reason, I think it an official act of the Sheriff, and that those who are bound as securities for his official acts, are responsible. The Sheriff will have omitted to discharge his official duty, only where be shall have (ailed to pay the condemnation money, or surrender the Defendant before final judgment on the-sci.fa. The demurrer must be sustained.

Tatxor, Chief-Justice, concurred.