
    Johnson and others v. Erskine, Chief Justice, use of Hanger.
    The general rule is, that when directed to bo made in a particular mode, that mode must be substantially pursued in order to make a valid statutory bond; but to render a bond void for want of conformity to tho statute it must be made so by express enactment, or be intended as -i fraud on the obligors, by color pf law, by an evasion of the statute, or be more onerous than is required by the statute.
    The objects of the two statutory bonds required of ferrymen by the 14th section of the act of 383i>, (Hun. JDig., art. 1385,) and the 5th section of the act of 1840, (Hart, Dig., art. 1391,) were obviou.-ly distinct.
    Where the f-iaruto required ferryman to give a bond to do certain things specifically, and the bond taken was conditioned ‘‘that they shall well and truly perform and discharge all the duties required of them as ferrymen.” it was held that the bond, being more onerous than required by the statute, was void and would not sustain an action as a common-law bond.
    A literal conformity to the statute in a statutory bond in general would not be required, but' where its conditions are specially and particularly set out the bond should substantially embrace each of those conditions.
    Bbiiuahino.
    Where the statute specially sets forth certain things or conditions to be done and performed, and the bond sets out those conditions substantially in the terms of the statute, but procooiK to set out other conditions, tho bond will be good under the statute as to the conditions properly contained in it, the other conditions being considered surplusage; but where none of the conditions set out in the statute are contained in the bond, and the only e.»nduion set out is collectively “ to perform and discharge all tlxo duties,” &c., the bond will not be valid under the statute.
    If a bond inionded to be taken by authority of a statute cannot be sustained as a statutory bond it will not be valid as a eommou-law voluntary bond unless it will stand as such without the aid of the statute. There is a ela^s of bonds that may well be sustained, from their form and structure, without tho aid <if any statute; injunction bonds, bail bonds, re-plevy bonds, forthcoming bonds, appeal and writ of error bonds, and all sueh as are made payable to the beneficiary or interested party, unless taken under coercion and oppression, or by fraudulent imposition; they would be valid at common law without resorting to tlie stmi uto to give them effect.
    Tho right u> Uc»ep a lorry and charge ferriage is a common-law right, but by our statutes this natural right, has been abridged, and it ha^ been made a franchise to be exorcised on giving bund and obtaining a license for its enjoyment.
    Where a party had a right at common law to do a certain thing, as to keep a erry, and a statute cxiu'ts tin* giving of a bond as a condition precedent, the giving of the bond cannot be called a voluntary act; and if tho bond be not good as a statutory bond, it will not be binding as a voluntary bond at common law.
    It seems to bo well settled that if a bond be not good as a statutory bond, but be good as a common-law bond, there can ho but one recovery on it.
    Sound policy forbids tho court to sustain a bond, intended to be taken by authority of a statute, as a*common-law bond except in case* which are very clear.
    A ferryman who has not given a valid bond in conformity to the statute is liable as a common carrier.
    Appeal from Grtadaloupe. This suit was instituted in tho District Court ior tlie county of G-uadalonpe to recover damages from the appellants for the loss ■of mules "and other property whilst attempting to cross tlie river at the ferry kept hy tlie appellants. The suit was brought bn tlie bond given by tlie appellants on their obtaining- a license to keep a ferry. It was taken under the 14th •section of the act of tlie congress of the republic of December 20th, 1836, article 1385 of Hartley’s Digest. That section reads as follows : “That at all times •“ tlie County Courts throughout this Republic shall have power to establish “ferries as are hereinafter directed; that., before any person shall establish a •“ public ferry in tlie Republic, lie shall apply to tlie County Court of the “comity in which such ferry is intended to he established, and the court, for “good canse being shown by the party applying, may grant a license to estab- “ lisli a ferry, and'shall affix the rates of ferriage for crossing all persons, horses, “cattle, carriages, &c., that shall pass tiie same; and shall moreover require “.from the person or persons applying for license to give bond with good and “sufficient security in the sum of one thousand dollars, payable to the judge of “the Comity Court of the county in which the application is made, and his “successors in office, conditioned that tiie person or persons to whom said “license maybe grauted shall provide and constantly keep good and sufficient “ boats or other craft; also, tiie banks on either side of the water-course in good “repair; and that said ferry shall bo well attended for travelers or other per- “ sons to carry or pass with horses, carriages, or effects over such river or “water-course.”
    Tiie condition of the bond sued on was that they “shall well and truly per-“forrn and discharge all the duties required of them as ferrymen.”
    There was a verdict and judgment for the plaiutiif. Motion in arrest of judgment on the ground that the condition of the bond did not conform to tire statute.
    Overruled.
    
      Webb fy Oldham, for appellants.
    The judgment should have been arrested. This purports to be a statutory bond, and it does not conform t.o tiie statute.
    Tiie condition of the bond is not in accordance with the statute, and therefore is not good as a statutory bond, and the facts set forth in the petition did not authorize tiie plaintiff to maintain tiffs suit for the use of Hanger, (llibbits v. Canada, 10 Yerg. R., 4(13; MTntosh v. Laugtreé, 0 Yerg. R.,317; Sumner & Foster v. Henry, 4 Yerg. R„ 155; Janes et al. v. Reynolds, Adm’r, 2 Tex. R., 250.)
    Regarded as a common-law obligation the facts alleged do not constitute a breach of the condition for want of privity between the obligors and Hanger.
    
      Paschal and Gordon, for appellee.
    The motion in arrest of judgment in tiffs case is a general exception to the judgment, and under our system of pleading and practice should not he allowed to seek inquiry into the ease. The object of the motion, however, is to attack the validity of the bond of defendants or appellants upon which this suit was brought'. Although tiie bond is not in tiie precise words of tiie statute, yet it imposes upon them all the obligations and responsibilities of the statute. They bind themselves to “discharge all the duties required of them as ferrymen,” and tiie statute requires certain duties to bo performed by ferrymen; hence the bond, although not literally is substantially in compliance with the statute.
    “An official bond required by statute, but which is not in conformity with “the statutory provisions, is good so far as it does conform, nuless the statute “expressly provides that bonds not made in conformity therewith shall be “•void.” (1 Kelly, Ga. R., 581-2.)
    “A bond taken under the statute is not void for not conforming precisely to “the directions of tiie statute, unless it be made so by express enactment, or “the variance was intended to evade tiie statute or to operate as a fraud upon “the obligors.” (2 Bail. R., 376; 2 ST. & McC. R., 425 ; 2 McC. R., 107; G Binn. R., 298.)
    “A bond is not void merely because it does not in all respects conform to “tiie statute under which it is taken. It is absolutely void only when the “statute delares it void.” (Van Deusen v. Hayward, Í7 Wend. If., 67; Ring v. Gibbs, 26 Wend. R., 502.)
    “A variance between a statutory' bond and the requisitions of law is fatal “ only where the condition would impose on the obligor a greater burden than “ the law allows.” (The Commonwealth v. Lamb, 1 Watts and Serg. R., 201.)
    “Tiie obligor in a statute bond can in no case be permitted to take advau- “ tage of the omissions of conditions, where the omission is beneficial to him“self.” (The Justices v. Wynn, Dudley, Ga. R., 22.)
    
      “ Where there has been a substantial compliance with the law, the want of “rigid conformity with the mere loiter of the statute requiring a bond to be “taken is not a fatal objection to tlie bond.” (Central Bank v. Kendrick, Dudley, Ga. It., GG.)
    “Tlie rule in regard to bonds or other deeds void in part by common law or “by statute is, tliat they are void-as to such conditions, covenants, or grants “ as are illegal, and good as to all others which are legal and unexceptionable.” (Whittl'd r. Tlie Governor, 6 Port. It., 333.)
    If this bond is not a statutory bond, it is good at common law, and there being no distinction in our courts between law and equity it matters not whether tlie bond be sued upon as a statutory or common-law bond, or a mere voluntary obligation; the parties are liable under it; provided- they have been allowed all of their equitable defenses; therefore the judgment must bo good. 
      I. A. §■ O. W. Paschal, for appellee.
   Lipscomb, J.

It is manifest that the conditions of the bond sued on are not in conformity with those expressly required by the statute under which the bond was taken; but is such non-conformity sufficient to invalidate the bond ? In the cane of Janes et al. v. Reynolds, administrator, (2 Tex. R., 255,) this court acknowledged that the general rule on the subject of statutory bonds is, “ that when directed to be made in a particular mode, that mode must be pursued;” but we say that “this rule is subject to modifications, and it is laid “ down that to render a bond void for want of conformity to a statute it must “be made so by express enactment, or must be intended as a fraud on the “obligors, by color of law, by an evasion of tlie statute.” (Treasurers v. Bates, 2 Bail. R., 376; United States v. Tingey, 5 Pet. R., 129; United States v. Bradley, 10 Id., 343; United Slates v. Lynn, 15 Id., 290; Speake et al. v. United States, 9 Cr. R., 28.) There is no provision in the statute making the bond void for non-conformity to the mode prescribed ; and if it- is void as a statutory bond, it is so on the ground of some other vice in it.

it is laid down iii the decision of this court in the case we have just cited, if not in express terms by implication at least, that if the covenants contained in the bond are more onerous than those imposed by the statute, such departure from the statute would invalidate tlie bond. The condition of the bond in this caséis “that they shall well and truly perform and discharge all the duties required of them as ferrymen,” language sufficiently comprehensive to embrace not only all the conditions expressly enumerated and required by the statute direct ing the bond to be taken, but also all other duties required by law from the licensed ferryman. And if there are other duties required by law it would result that the bond is more onerous to the.obligors than those imposed by the law under which it was taken. It will be found that the last sentence of the 15th section of t lie same, act gives to any person who may be detained at a public ferry, by the neglect of the ferryman performing his duty, the right to recover by a warrant from a justice of the peace ten dollars for such delay. The 16th section imposes a penalty for exacting- more toll than is allowed by law. These are duties not imposed by the conditions of tlie statutory bond, but would be embraced in the conditions of the bond sued on.

Again, the 5th section of tlie act to amend an act organizing justices’ courts, and defining the powers and jurisdiction of the same, January 19th, 1S40, (Dig., art. 1391,) enacts “That the County Courts throughout tlie Bepublic shall “require the owner or owners of tlie ferries- established in their respective “counties to give bond with good and sufficient security in the sum of one “thousand dollars, payable to the judge of tlie County Court of the county “where such ferry is established, and to his successors in office; conditioned, “that the person or persons giving- such bond shall keep the banks on either “ side of the water-course in good repair, and that the slope or amount of rise “from the water’s edge of such bank shall not exceed two feet for each rod.

“ And if any ferryman or owner of any ferry shall not comply with the “conditions above mentioned lie shall forfeit and pay to the county treasurer “of the county ten dollars a day for each day lie shall neglect to keep the said “hanks in repair, said money to be applied to the use of the conuty.”

This court, in the opinion delivered at the last term, we respectfully submit, erred in holding the bond to he void and directing the suit to be dismissed. Whether viewed as a common-law or statutory bond the plaintiff had the right to recover. (Grimes v. Butler, 1 Bibb R., 102; Bartlett & Co. v. The Governor, for the use of Prather, 2 Bibb R., (58(1 and G41; Colley v. Morgan, 5 Ga. R., 178; Justices Inferior Court v. Ennis, 5 Ga. It., 5G0; Governor Crawford, for the use of Ward, v. Stephens et al., 1 Kelly It., 574; and the same case, 3 Kelly R., 499; Hall v. Cushing, 9 Pick. R., 395; Morse v. Hudson, 5 Mass. R., 314; Commonwealth v. Hatch, 5 Mass. R., 191; United States v. Bradley, 10 Pet. R., 343; Miner v. Mechanics’ Bank, 1 Pet. It., G9; United States v. Tiugey, 5 Pet. It., 115; Acker ». Burrell, 21 Wend. It., G05; State New York v. City of Buffalo, 2 Hill, 434; Allegany Supervisors v. Van Campon, 3 Wend. R., 4S; Triplett v. Gray, 7 Yerg. R., 13; Spear v. Ditts, 8 Verm. R., 419; United States v. Morris, 2 Brock. It., 96; Stevens v. Treasurers, 2 MeC. R., 107; Branch v. Commonwealth, 2 Call. R., 670; Johnson v. Gwathmoy, 2 Bibb. It., ISO; Treasurer v. Bates, 2 Bail. R., 302 ; Janes el al. v. Reynolds, 2 Tex. It., 250.) These authorities have been cited to the single point decided by the court. The cases cited in Janes v. Reynolds, (2 Tex. R., 250,) completely exhaust the subject and show the true rule and its reasons.

The conditions of the bond sued on would render the obligors bound for the fonnancc of the duty here imposed on the ferryman, whether any damage uau been sustained or not, if the duty had not been, performed. The object of the two statutory bonds required to he given by ferrymen or owners of ferries was obviously distinct; the first, was intended as a security for those who should sustain damage from the breach of its conditions; and if no damages had been sustained there could bo no ground for an action. The second was to secure the penalty for the non-performance of it duty imposed, without regard to the question whether damages had been sustained or not; and yet the"bond sued on is so framed that it could with as much propriety, and perhaps more, claim to he taken under the last as under the first. A literal conformity to the statute in a statutory bond in general would not he required; hut where its conditions are specially and particularly set out, as they are in the statute under which the bond sued on was made, the bond should substantially embrace eaeli of those conditions. The conditions expressed in the statute' have been so entirely disregarded in the bond sued on that we believe it could not be the ground of an action under the statute, and that the judgment must be reversed and cause dismissed.

It may be proper to remark that the law under which this suit was brought and the provisions of other statutes cited have all been repealed or suspended by the act of 23d of January, 1850. (Dig., art. 1413.)

REHEARING.

Dipscomb, J.

After the opinion of the court in this case had been delivered at the last term, on the petition of the appellee’s counsel a rehearing was granted, and an argument has been heard at this term. The counsel for the appellee has endeavored with much ability to establish two positions: 1st, that the bond sued on is a good statutory bond; 2d, that if not good as a statutory bond, yet it is a good and valid bond at common law, sufficient to sustain the judgment of court below.

We have endeavored to bestow due consideration on his arguments and the very respectable authorities referred to by him. On the first position assumed we will, in addition to what is said in our opinion in support of the coa-elusion tW the bond is not a good bond under the statute, further say that, although i“ is admitted that where the statute specially sets forth certain things or eoudiiious to be done and performed, and the bond sets out those conditions substantially in the terms of the statute, but proceeds to set out other conditions to be performed, that the bond will be good under the statute because it has specified all that the statute required, and as to the others not required, they may be considered as surplusage, and the bond inoperative as to them; yet that, it is not so where none of the conditions set out in the statute are contained in the bond, and the only condition set out is collectively “to perform and “ discharge all the duties required of them as ferrymen,” and other duties being required by law, for which another bond is required to be given. We are not. furnished with any certain data to enable us to say what duties were intended to be secured to be performed by the bond on which this suit has been brought, but if is insisted that if the bond sued on is not a good bond under the statute it is valid as a voluntary bond at common law. And it is admitted that this position seems to be supported by the authority of some adjudicated cases of great respectability. The case most relied on by the counsel for the appellee and pre-sed with great force is Stephens et al. v. Crawford, Governor, 3 Kelly. 499. Stephens had been elected sheriff, and had within the time required by law after his election given bond, ami was in office under his election, and after the expiration of the time allowed by law to the sheriff elect to give bond, on some suggestion of the insufficiency of the bond he had given he voluntarily gave another bond. The court ruled that this last bond was not good under the statute, but that it was valid and binding upon him and his securities as a voluntary bond at common law. And it was further decided in the smile ease tlmt, as a common-law bond it could invoke the. aid of the statute, the provisions of which it had so far disregarded as to be held not a statutory bond, to give it force and effect.

To this last proposition, notwithstanding the great and sincere respect we entertain for the court so ruling, we are unable to yield one assent. We believe that, if a bond, intended tolie taken by the authority of a statute, cannot he sudained as a statutory bond, it caunot be valid as a common-law voluntary bond unless it Will stand as such without the aid of the statute by which it lias been repudiated. There is a class of bonds that may well be, sustained, from their form and structure, without the aid of any statute : injunction bonds, hail bonds, replevy bonds, forthcoming bonds, appeal and writ of emu- bonds, and all such as are made payable to the beneficiary or the interested party, unless taken raider coercion and oppression, or by fraudulent imposition on the party; they would be valid at common law without resorting to the statute to give them effect as such.

Again, we are. not prepared to say that the bond sued upon in this case, is a voluntary bond, because, independently of all statutory enactments, the appellants were under no moral obligation to give a bond before they could exercise the privilege of keeping a ferry boat upon their own lands and demanding a compensation from those who received their services. But by our statutes this natural right lias been abridged, and it lias been made a franchise to be exercised on giving bond and obtaining a license for its enjoyment. The statute should therefore require a more strict observance. Now, it will be seen that in most of the cases cited by the appellee’s counsel the suit was ou an official bond, as was the case in 3 Kelly, and it cannot be contended that to require an official bond from an officer on entering upon tlic discharge of official duties is any abridgement or restraint upon liis rights; yet the eminent judge wiio delivered tlie opinion in the case referred to, to support the conclusion that the second bond was a voluntary boud, seems to place much stress ou the fact that Stephens was already in the office of sheriff when that second bond was given by him. Had the appellants been already in the enjoyment of the franchise under a license when they gave the bond it would have been analogous in many respects to the case of the sheriff Stephens, hut they were not, and were required to give the bond before they could exercise a right that unquestionably belonged to them if there had been no statute in relation to ferries.

In the case of the Commissioners of the Poor for Lawrence District v. Gains et al., 1 vol. South Carolina Rep., 459, which was a suit on a bastardy bond, Judge Bolt, who gave the opinion of the court, says that the bond is not valid as a statutory bond; that where an act of the assembly requires a tiling io be done in a particular way, that way and that alone must be pursued; that every feature of the act is so distorted by this bond that one would hardly suppose it had any relation to it; and he proceeds, “ I do not think it a good bond at “common law; if it had been voluntarily entered into, for the purpose of sup- “ porting this child, I should consider it a duty which the obligor was under a “ natural and moral obligation to perform, and therefore a debt which he was “legally bound (o pay; but it appears on the face of it that he was taken by “virtue of a warrant from a magistrate, and compelled, under color of legal “authority, to enter into a bond for purposes which he was neither naturally “nor morally bound to perform.” Independently of the statute as before said, the appellants were neither legally nor morally bound to give the bond as a prerequisite to the exercise of the right to keep a ferry, and as they wore required to give the bond before exercising’ it, the giving’ it cannot well be called a voluntary act.

Unless we felt very clear that the bond was valid as a voluntary common-law bond, sound policy would forbid our sustaining’ it as such. Airy latitude allowed to officers whose duty it is to take bonds, in departing from the terms required by the statute in the structure and framing the bond, will be an encouragement to a further disregard and inattention to its requisitions, and it must bo productive of an evasion of tlie statute altogether, because it seems to be well settled that if a bond is sued upon as a common-law bond, there can be hut one recovery on it, (see case 3 Kelly, before cited;) hence a bond might so far depart from the-statute as not to be sustainable as a statutory bond, and this through design; and when sued upon as a common-law bond — say that it was a sheriff’s bond — the sheriff might invoke a recovery against him for a few dollars, which would prevent,|iiiy other suit being sustained on it — a bond that the statute contemplated should he a security against delinquencies to the amount of twenty or even one hundred thousand dollar» would he discharged by a judgment on it, as a common-law bond, for a mere nominal amount.

Believing that the bond sued on was neither void tinder the statute nor at common law, we adhere to the opinion that the judgment must he reversed and tlie cause dismissed. The only legal remedy that the appellee had was a suit at common law against the appellants as common carriers, if he had suffered by the negligence of themselves, their servant, or agents.

Reversed and dismissed.

Wheelee, J., gave no opinion in this case.  