#### Rhodes v. Vaughan.

From Guilford.

When an act of the Legislature prescribes the substance of a bond, that bond so drawn as to include every obligation imposed by the .Legislature, and to afford every defence given by the lair, will be valid, notwithstanding it. may be slightly variant from the literal form prescribed; and it is not necessary to insert in the condition of a bail bond, évery alternative contained in the 8th section of the act of 1777, ch. 8, on which bail are dischargeable, because the right to be discharged is not given the bail by the words of the obligation, but is given them by a public law which the Courts are bound to notice.

Tills was a scire facias against the Defendant as bail of one Jennings, against, whom a judgment had been obtained at the. instance of the present Plaintiff, in the Superior Court of Guilford county. The condition of the bail bond was in the following’ words, ‘6 On condition “ that John Jennings, one of the above bounden, should u make his personal appearance before the Judge of the “ Superior Court of Law to be hidden for the county of 6‘ Guilford, at the court-house in Greensboro’, bn the “ fourth Monday after the fourth Monday of March, “ 1820, then and there to answer Thomas Rhodes of a <s plea of trespass on the case to his damage two hun- “ dred pounds, and io stand to and abide by the judgment “ of the said Court, and not depart the same without “ leave.” • Oyer was prayed of the condition, in the Court below, and a motion in arrest was made on the ground that the condition of the bail bond was not in the manner and form directed by the statute. The motion having been allowed, the question was presented to this Court on the appeal of the Plaintiff.

The case was argued by Sam'ell for the appellant and Jtvfp.n for the appellee. i

*168For the appellant it was contended, that the addition in the condition of the bond beyond the words of the statute was no more than the law imposed if the addition had not been made, and therefore it could not vitiate the bond. The maxim hero applied, “ qni heard in litera,” &c. It was further urged that no inconvenience could have happened to the Defendant in this case; if it had it might be relieved on motion — that the statute 23 Hen. 6, did not require in the condition of the bond the words et then and there to answer,” yet a bond having annexed a condition with these words had been holdcn good, because no profit accrued to the Sheriff or any other person, so the intent of the statute was answered. — (9 East 55 — Jhjer 364, a, pi. 29 — Cro. Elios. 672 — Plawd. 67.)

For the appellee it was insisted, that the bond was absolutely vuid; that the act of 1777, ch. 8, s. 8, directs that the bail bond shall be dischargeable upon the prisoner’s appearance at, &c. and his securities discharging themselves therefrom as special bail; that this bond contained no provision for the discharge of the sureties, and the omission was fatal. A review was taken of the common law on the subject of bail, taken in connection with the statute 23 Hen. 6, and 4 and 5 Anne, c. 16, previous to legislative interference in this country ; the object of which was to show the difference between bail to the sheriff, or appearance bail, and bail above, or special bail, and also the intention of the legislature in making all bail in this State special, and consequently the necessity of the provision omitted in this bond. 2 8aund. 59, in notes, was referred to for the common learning on this head, and in addition the following authorities: Plow. 69— Cro. Elios. 808, 862 — 1 Ld. May. 352. It w7as then urged that our law was precisely the same with the law of .England, as 23 Hen. 6i and 4 & 5 Anne were re-enacted and declared to be in force — {Swan’s Mevisal, 88, 89. 301) — that this state of things was not felt as a griev-*169unce, owing ío the peculiar situation of ilie country, population being confined to a small section of country in the casi, and all judicial proceedings being transacted in two or tlirce Courts, but as population diffused itself over a large portion of country, the burden of giving to the S’i>' iff bail who were subject to al! the liabilities of éaü for appearance in .England beca »e intolerable, and to remedy it the act of 1768, ch. Í,-(Davis’s Mev.') made the bail !:o liso Sheriff special bail, and to preserve the symmetry of the law, altered the, form of the so as to adapt it to its legal effed, and at ill sion the form of the bond is prescribed, and introduced the condition for iS tlse security himself therefrom as special bail” — (1768, í Mev. 400.) These statutes of 1768, ch. 1 upon the organization of a judiciary system unaeg^ic new government, incorporated into the acts of 1777, CHf ñ and 8, thereby giving to the bond a form consistent with the known rights and duties of special bail. This view of tlse subject explained satisfactorily the reason why the clause, omitted in the condition before the Court, was inserted in the act, and proved ii to be of the very essence of the undertaking of bail in this country. Its omission therefore vitiated the bond, tor even on general, principles it might be contended that all bonds, taken by publick officers and prescribed by statute, must conform to the statute, bid. here- the ac.f itself declares that a bond taken otherwise than the statute directs, shall be void. Unless the provision in the act fee inserted, it was urged there could he but one plea to the country, íS compernii ad diem’’ and the bail loses the advantage of surrender and the death of his principal. A consequence also would be that the Sheriff, by taking such & bond as the present, and not assigning it, would himself be only spe-dal bail, while upon the non-appearance of the original Defendant, lie would hold this bond as absolutely forfeited and due to himself, this omission is one of the very *170acts of oppression which the Legislature meant to redress, and there is no mode of doing it or relieving bail but to declare the bond void. That the mode to take advan-by motioi> in arrest was proper, authorities were cited — (1 Term Rep. 418, 2 Ibid. 575.)

Henderson, Judge.

When an act of the Legislature prescribes the substance of a bond, that bond so drawn as to include every obligation imposed by the Legislature, and to afford every defence given by the law, will be valid notwithstanding it may be slightly variant from the literal form prescribed. This bond is alleged to be void under the, 8th section of the act of 1777,’ ch. 8th, because it is taken by the Sheriff, from a person held in arrest, contrary to the provisions of that act: and the particular defect insisted on is, that every alternative of discharge contained in the said section is not given to the Defendant by the terms of the condition $ to wit, that the bail should discharge themselves from the penalty by surrendering the, principal as his special bail. And if this were true, the objection must certainly prevail — but I think it is not. This obligation upon its face purports to be taken by a Sheriff', in bis name of office, from one whom he had arrested at the instance of the Plaintiff, conditioned to be void upon the appearance of the Defendant according to the command of the writ, and that he should not depart the Court without leave. The obligations here imposed by law are those of hail to the writ, and bail to the action ; for our Legislature have thrown on those who become bail to the writ, the liabilities also of bail to the action, with a slight alteration, extending the time of surrender to the judgment on a set. fa. instead „of the return of the ca. sa. as it was at the Common Law. By the exposure of the nature of the obligation, the liabilities created by law' arising therefrom attach on the Defendants, and the defences incident to their situation are. also accorded to them, notwithstanding an omission *171•■specially to insert the»}, for if (bey appear upon an inspection of the obligation they are ¡if) valid oa the one side and Iho other as if specially made. The bail’s right to surrender their principal, (and by this bond they appear iu the relation and capacity of bail,) i» a right given them not barely by the words of the obligation, but a right given them by law, and that a puhlick one which all Courts are bound to take notice of. Ami the fact of discharge appearing to the Court by plea or otherwise) the law arising- upon that fact must be pronounced by the Court. If we test the validity of this bond by the declared motive of the Parliament of lien. <5, (who passed the statute in relation to Sheriff's bonds,) or our own act of 1777 on the same subject, it will be found to be valid, as suppressing the. mischief winch was intended to be remedied. — the taking of bonds by Sheriff} of those held in arrest by them for other purposes than the object of arrest, and affording to the obligors every exoneration from the penalty of the bond which their situation entitled them to. And could 1 perceive that either of those objects could be frustrated by the obligation now under consideration, 1 would declare the bond to be void. A;; I cannot, I think the judgment' of the Superior Court should be reversed, and judgment rendered for the Plaintiff.

Taylor, Chief-Justice, concurred with IIemjj'e'usol.

Hall, Judge,

contra. — According to the English practice, special bail is understood to be that bail, which a Defendant, when arrested, gives to the sheriff for Isis appearance at a certain time and place; and bail to ike action, is that bail, which the Defendant at that time and place, gives in a penalty conditioned to be void, provided he shall pay the condemnation of the Court, or surrender himself to prison, or provided the bail shall do it for him — (3 Black. 290, 291.)

*172Although our act of 1777, ch. 115, sec. 19, declares, that all bail sh. be special bailit further declares, that such bail shall be liable to the recovery of the Plaintiff. x*y this latter clause, the bail may be considered, what in England would be called bail to the action. Then it may be said, that the liability of the bail spoken of in this act, is as broad as the liability both of special bail, and bail to the action, in England.

It is in the character of bail to the action, however, that the Defendants are now called in question. By another act passed in the same session of 1777, ch. 118, sec.. 8, it is'declared, that it shall not be lawful for any sheriff to take any bond, otherwise than payable to Mms'df, as sheriff, and dischargeable upon the prisoners appearance, &c. and rendering himself at the day and place required in the writ, &,c. and his securities discharging themselves therefrom, as special bail of such prisoner. What then, under this act, are the bail liable for ? They are liable for the Defendant’s appearance — and are liable in the words of the act to the recovery of the Plaintiff, unless the Defendant shall discharge it, or surrender himself to prison. But the former act (sec. 20) puts it in the power of the bail to discharge themselves from their liability, by surrendering their principal, See. This then is another condition, on a compliance with which the bond becomes void, and it would seem that that condition should be inserted in the bond; because the act says, that the bond taken shall be dischargeable upon the prisoner’s appearance, &c. and his securities discharging themselves therefrom as special bail of such prisoner. Now, one mode of discharging themselves, is, paying the recovery of the Plaintiff, in case of failure by Defendant. Another is, surrendering the Defendant to prison; and as the bond is to be void upon condition of doing the one or the other, it appears to me that each alternative should be inserted in it.

It is trüe the act prescribes no form of a sheriffs’ bond, but it should be taken substantially as the law directs. *173it therefore appears to me, that when bail are liable as ■■•ni l, to the recovery of tíre Plaintiff, ami liable to be pro-reeded against, in default of their principal’s not either paying the debt or surrendering himself to prison, that there is but one plea allowed then!, and that is a gtiwui-•Icr of their principal, or death of the pri ¡cipa? (which is the seme thing iu effect) and as they can save Ubeuwh'es \v that plea, that it should be inserted in the bond as one of its conditions iu their* favour $ otherwise ! inclino to think the bond is not taken conformably to the act j tbs* strictly speaking, the bond is forfeited, unless bv or Muder the. condition something may be pleaded to prevent it.

If I have given to the act a wrong construction, I am glad, when 1 reflect,that no bad consequences will flow from it, as a majority of the Court think differently from me. But judging for myself, I am buutid to say that judgment should be entered for the ^Defendant,