Opinion
December Term, 1822.
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 defense given by the law, 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 every 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.
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: "On condition that John Jennings, one of the above bounden, should make his personal appearance before the judge of the Superior Court of law to be holden for the county of Guilford, at the courthouse in Greensboro, on the fourth Monday after the fourth Monday of March, 1820, then and there to answer Thomas Rhodes of a plea of trespass on the case to his damage £ 200, and to 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.
Seawell for appellant.
Ruffin for appellee.
When an act of the Legislature prescribes the substance of a (170) bond, that bond, so drawn as to include every obligation imposed by the Legislature and to afford every defense 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 section 8 of the act of 1777, ch. 8, 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 his 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 bail 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 sci. 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 defenses incident to their situation are also accorded to them, notwithstanding an omission specially to insert them, for if they appear upon an inspection of (171) the obligation they are as valid on the one side and the other as if specially made. The bail's right to surrender their principal (and by this bond they appear in the relation and capacity of bail) is a right given them, not barely by the words of the obligation, but a right given them by law, and that a public one which all courts are bound to take notice of. And 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 Hen. VI. (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 which was intended to be remedied — the taking of bonds by sheriffs 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 I perceive that either of those objects could be frustrated by the obligation now under consideration. I would declare the bond to be void. As I cannot. I think the judgment of the Superior Court should be reversed and judgment rendered for the plaintiff.
TAYLOR, C. J., concurred with HENDERSON.