
    J. Anderson, Sheriff v. I. J. Foster.
    The only condition required by tbe prison bounds act, in the bond of a prisoner confined on mesne process, is, that he shall not depart from the bounds. The further condition, that he shall within forty days render a schedule, &e., is required of prisoners in execution, only: and if the bond of a prisoner in custody on wteswe process contain both conditions, the latter of them' is void; but it do»» n«t invalidate the legal condition, dr tender the bond, itself raid.
    
      IF a bond taken under a statute, in addition to the condition prescribed by the statute,'contain one not required by it, such condition is void ; but unless the statute provides that the bond shall be void if it contain any other condition than that required, the bond will be valid, and binding for the peribrm-iBC.e of the legitimate condition.
    In an action on a bond foi the prison bounds, the breach assigned was, that the prisoner did nut remain within the rules; defendant pleaded, that the prisoner did remain within the rules, luitílhe waslcgitlly intitled to be discharged; and that he rendered a schedule of all his estate or of so much thereof as •¡could satisfy the debt. Held, that the first part of the plea was bad for not "specifying the means by which the prisoner became intitled to be discharged; and that it was not aided by the latter part, which besides being bad for stating two defences disjunctively, was insufficient, in not shewing,that he had been ordered to be discharged on making an assignment of the estate contained in the schedule, and that he had made the assignment accordingly.
    The right of a prisoner, arrested on mesne process, to the benefit of the prison hounds, is not impaired by the refusal of an application, to the commissioner of special bail, to be discharged under the prison bounds act; and the obligation of his bond for the bounds continues. The authority of the ■ commissioner is limited to granting or refusing the discharge; and if he remand the prisoner to confinement, his act is unauthorized: but it does not prejudice the rights of the plaintiff, and cannot be pleaded in bar of an action on the bond.
    Tried before Mr. Justice Earle, at Union, Spring Term, 1831.
    This was an action of debt on a bond for the prison bounds, in which the. defendant was surety for George M’Kuight, who had been arrested at the suit of Hill and Clark. The condition of the bond, after reciting that M’Knight was in custody on mesne process, required that he should remain within the rules, &c.; and also, within forty days, render in a schedule of his whole estate, or of so much thereof as would satisfy the debt, &c. The declaration contained four counts ; the two first of which wee on the penalty alone. The third count set out the condition, and assigned two breaches; first, that M’Knight did not remain within the rules : second, that he did not render a scedule of his whole estate, or of so much thereof, as would satisfy the debt. The fourth count also set out the condition, and assigned as a breach, that M’Knight did not remain within the rules, but departed from them, &c.
    The defendant pleaded several pleas, the two first of which it is unnecessary to specify. The third and fourth pleas, whidls 
      wore substantially the same, but applied to different counts, ~ . . . . . , . , wel'8J that the said George M Knight did remain within the rules, until he was legally intitled to be discharged ; and that he did, "’hhin forty days, render a schedule of his whole estate, or of so much thereof as would satisfy the debt, &c. The fifth plea was, that M’Knight, after rendering his schedule, upon a suggestion of fraud therein, was remanded to imprisonment by the commissioner of special bail. To these pleas the plaintiff demurred, and the defendant joined in demurrer.
    The presiding Judge was of opinion, that a prisoner confined on mesne process was not required, by the prison bounds act, to incur the obligation of rendering in a schedule, in order to be in-titled to the rules. The first section of the act provides, that prisoners on mesne process shall be intitled to the rules, on complying with the requisitions of the act; and the second section, which contains these requisitions, merely provides, that no person committed on mesne process shall be intitled to the benefit of the rules, until he shall have given security not .to depart from the bounds and limits. The third section, which requires the additional obligation, of rendering a schedule within! forty days, is confined, in terms, to prisoners in execution ; and the fourth section- provides, that prisoners on mesne process shall have liberty to render a schedule, at any time during their confinement on such process. P. L. 456. From all which it is clear, that it was never intended to require a schedule from a prisoner on mesne process: a provision, which would have been, in the highest degree, unjust; as it would, in effect, deprive him of all opportunity of disputing the debt for which he was sued, except at the price of remaining within the walls of his prison-. So much, theréfore, of the condition of the bond in this case, as required M’Knight to render a schedule, must be treated as a nullity. But still, regarding this as an action for a breach of the other condition, that the defendant’s principal should remain within the bounds, his Honor was of opinion, that the pleas were no answer to the declaration.
    The third and fourth pleas were bad for not specifying the means, by which the prisoner became intitled to his discharge. For supposing that the last part of the plea could be brought in to aid the construction of the first part; although it was intended. to answer a different breach; still,it was not only bad pleading,to say that the prisoner was intitled to his discharge, because he had done one, or the other, of two things — because he had rendered in a schedule of his whole estate, or, of so much of it as would pay this debt — -but ihe plea, after all, failed to shew, that the prisoner was legally intitled to his discharge. It would no doubt have been a good plea in bar, that he had rendered in a schedule, and been discharged, on making an assignment. But until the Court, or the commissioner of special bail, had ordered an assignment of the estate contained in the schedule, and directed the prisoner to be discharged, and the latter had made the assignment accordingly, his rendering in a schedule could not intitle him to be discharged.
    Robinson «/fe ^'35°’' **ai
    The fifth plea was also insufficient. If the construction given to the act were correct, M’Knight, although under no legal obligation to do so, was nevertheless at liberty to render in a schedule, at any time before he was charged in execution ; and if upon rendering his schedule, he had been discharged by the commissioner of special bail, he would have been free from further obligation to remain within the rules. But his application for a discharge being refused, he was left exactly where he was before. His right to the benefit of the rules was not impaired, and his obligation under the bond continued. The authority of the commissioner of special bail is limited to ordering the discharge, or refusing to order it: he has no authority to remand the prisoner to confinement. If he does so, it is an unauthorized act, which cannot prejudice the rights of the plaintiff, and is no answer to this action.
    Judgmeutfor plaintiff, from which the defendant appealed, and now moved to reverse the judgment.
    Herndon, for the motion,
    contended, that the condition being illegal in part, the bond was altogether void: and therefore admitting the pleas to be insufficient, the defendant was nevertheless intitled to judgment on the demurrer.
    Dawkins, contra.
    
   O’Neai.1,, J.

delivered the opinion of the Court.

This Court concurs with the presiding Judge in his views of the law of this case, and for the reasons which he has given. It may be necessary to add, that, although to render a schedule within forty days, is not required by the prison bounds act, of prisoners confined on mesne process, yet the insertion of such a condition, in addition to that required by the act, does not render the bond void : for the act does not. provide that the bond shall be void, if it contain ¡iny other condition than that required. The illegal condition is void ; but the legal condition, and the bond itself, are valid, and binding.

Motion refused.  