9 N.C. 167 | N.C. | 1822
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 bysurrendering 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 *94 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 pleaor 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.
