
    
      J. Fletcher v. T. C. Weatherby, sheriff.
    
    The insertion of the name of the bail, in the condition of the bail bond, is not such a variance from the affidavit to hold to bail, as would discharge the bail; it is a mere mistake, and no ground for either an exoneretmr, or for a non-suit in an action on the bail bond. It may be remedied by amending the bond, and striking out the name of the bail, which would be ordered to be done of course, on motion, after notice, and no good cause shewn to the contrary.
    In this State, since the Act of 1809, bail is, in every instance, (except bail for a woman,) upon the footing of bail above. They are, therefore, to be regarded as subject to all the liabilities, as well as having all the privileges.
    
      Before Evans, J. at Marlborough, Spring Term, 1848.
    This was an action by sum pro, against the defendant as sheriff. It appeared from the evidence, that Atlas Jones had borrowed money of the plaintiff, and gave a note with one Norton as security. The plaintiff sued out a bail writ against .Tones, who was arrested by the sheriff, and gave a bail bond, signed by himself and one Enoch Godfrey, as his bail. The condition of the bond was that both Jones and Godfrey should appear at Court to answer. The plaintiff prosecuted his suit against Jones, and on the return of the ca. sa. sued Godfrey, the bail, but, on the hearing of the case, he was non-suited, on the ground of variance between the order for bail and the condition of the bail bond. He then brought this action, and the Circuit Judge was of opinion the sheriff was liable, and decreed accordingly. He thought the bail bond void. It appeared from the evidence, that the name of Godfrey, in the condition, was in the hand writing of Godfrey; but he did not think this made any difference. The taking of the bond, was the act of the sheriff. As regards the second ground, no evidence was offered on the subject. Nothing was said by any witness, except that Nazara Norton was Jones’ security on the note. It did not appear where he was, who he was, or whether he had any thing to pay the note.
    4 McC. 175.
    The defendant appealed, on the following grounds •,
    1st. That the bail bond was valid.
    2d. That the decree was for a sum more than sufficient to pay the actual damage of the plaintiff, as the plaintiff still has a remedy for the ‘whole amount of the note sued upon, against the other party to said note, to wit: Nazara Norton.
    
      Dudley, for the motion.
    
      M’ Queen, contra.
   O’Neall, J.

delivered-the opinion of the Court.

The first ground of appeal will alone be considered. For in the view which the Court takes of the case, that will entitle the defendant to a new trial.

Certainly some confusion pervades our cases, from the distinctions between bail below or bail to the sheriff, and bail above or bail to the action, not being sufficiently attended to. In this State, since the Act of 1809, bail is, in every instance, (except bail for a woman,) upon the footing of bail above.— They are, therefore, to be regarded as subject to all the liabilities, as well as having all the privileges.

In Loker v. Antonio, it was held that in an action of debt, on a bail bond, as well as on a scire facias, it was necessary to set out the condition, the action against the principal, the recovery of judgment, the suing out of a ca. sa., the return of non est inventus by the sheriff, and that the principal had not paid the damages, costs and charges so recovered, nor any part thereof, nor rendered his body in satisfaction. This was, to all intents and purposes, putting the bail bond upon the footing of a recognizance of bail, executed by bail above.

In. such a case, what variance between the bail bond and the affidavit to hold to bail, would discharge the bail 7 As is said in Saunders v. Hughes, it must be “ a variance by declaring on a totally different cause of action from that stated in the writ.” Here there is no variance, save that the name of the bail is inserted in the condition, and it would appear from it as if the action, for which he became bail, was against Jones and himself. This is absurd ! No man can be bail for himself. The maxim, utile per inutile nonvitia-tur, would apply to this blunder, and I think it might be rejected as surplusage. But, in another view, it cannot vitiate the hail bond. The law before ’39, would have been satisfied, in its letter, if the condition had merely required the defendant to appear at the return of the writ, but as a matter of construction, it had been required that in addition to appearance, at the return, the case and the form of the action, in and to which he was to appear, was to be stated.

29 Bail 510

23 H. 6, C. 9, P. h. App. 8.

Saunders v. Hughes, 2. Bail. 512, 513.

The Act of ’39, sec. 14, directs that the condition of the bail bond shall contain “ a provision for the appearance of the defendant, at the Court House of the district, to answer to such plea as may be expressed in the process of plaintiff, at the term of the Court next succeeding the return day thereof.” Read the condition of this bond, excluding the name of the bail, and it is a full compliance with the Act. As he could not be bail for himself, the insertion of the name of the bail would be a mere mistake, which would be no ground for either an exoneretur or for a non-suit, in an action on the bail bond. For the whole end of the law has been satisfied, the bail and the principal both know that the action, in which the bond is given, is against the principal alone, that it is in that action, and that alone, that the principal is to appear and answer. Knowing this, and also that there is no such action as one against the principal and the bail, it follows that they could not be prejudiced, in any shape, by the mistake in the condition.

I have no doubt, too, that the error in the bail bond, if of any importance, may be remedied by amending the bond, and striking out the name of the bail. Such a eourse has the sanction of Tidd’s Practice, 264-5. It is only necessary to give notice of such a motion to amend, and if good cause be not shewn to the contrary, (which it is manifest here cannot be done,) the amendment will be ordered of course.

The bond being valid, it follows that the plaintiff has no cause of action against the sheriff.

The motion for a new trial is granted.

Richardson, J. and Frost, J. concurred.  