
    
      Isaac Tobias vs. James Reed.
    
    1. Where, in an action of debt on bail bond, it was alleged, in the declaration, that bail was taken, before the return of the writ for appearance at the return, and the proof shewed bail taken after the return, conditioned for appearance at a subsequent term, a non-suit was ordered, and a motion to set it aside refused.
    2. The court will rarely interfere to grant leave to amend, by setting aside for that purpose, a non-suit properly ordered, even where a motion for leave has been made in the circuit court and refused, because it came too late.
    
      Before Wardlaw, J., Charleston, May Term, 1842.
    Debt on bail bond. In the original case of Isaac Tobias vs. James Wood, the writ of cap. ad res. requiring the defendant to appear “ before the justices of the said State, at the court of common pleas, to be holden at Charleston,” in January Term, 1840, was entered in the sheriff’s office, 26th September 1839, and was returned, “ cepi corpus, and in jail — afterwards came James Reed, bail.” Wood was, at the lodgment of the writ, in jail, under arrest at the suit of another plaintiff, and so continued until 23d April, 1840, when the bail bond now sued on was made by Wood and Reed, payable to the sheriff, conditioned for the appearance of Wood, “ before the justices of the court of common pleas, to be holden at Charleston,” in May, 1840. Judgment against Wood, May Term, 1840, and ca. sa. returned N. E. I.
    The declaration in this case, in setting forth the proceedings in the former case, according to Loker and Antonio, 4 McC., 175, alleged that the writ in the former case required the defendant to appear “before the Judges of the court of common pleas, to be holden at Charleston,” in January, and that the sheriff, after lodgment of the writ, “and before return of the writ, to wit, 23d April, 1840, took and arrested” the said Wood, “ and whilst sheriff then and there took bail for his appearance at the return of said writ.”
    A non-suit was moved for—
    1. Because the bail bond did not contain in its condition, “ a provision for the appearance of defendant at the Court House of the district, to answer,” Ac., conformable to the 14th section of the sheriff’s Act, of 1839.
    2. Because the bond, in its condition, required an ap^ pearance before the Judges of a court, but not at the term of a court; and although the writ in the former case was correct, yet the statement of it in the declaration did not shew that it required an appearance at the term of the court; so that the bond was defective and variant from the allegation, and the allegation of the writ varied from the proof.
    3. Because the declaration alleges bail taken before the return of the writ for appearance at the return, and the proof shews bail taken after the return, conditioned for appearance at a subsequent term; and if the bail taken was at all conformable to the aforementioned 14th section of the sheriff’s Act, it should have been alleged according to the fact, with the circumstances which authorized it.
    The presiding Judge granted the motion on the third ground.
    The plaintiff appealed, and now moved to reverse the non-suit ordered, on the ground that his Honor erred in deciding that there was a fatal variance between the declaration and the evidence.
    Moise, for the motion,
    referred to the case of Loker vs. Antonio, 4 McC. 1.75, Act of 1792, 7 Stat. at Large, 281 ; TI ib. 26'; 1 McMull. 364; Harper’s Law Rep. 215; 1 Bailey, 65.
    Rice, contra.
   Curia, per

Wardlaw, J.

The 14th section of the Act of 1839, “ concerning the office, duties and liabilities of sheriff,” 11 Stat. 29, in its provisions concerning the form and effect of bail bonds, undertakes to meet, as well the ordinary case of an arrest made at the time of serving a writ of cap. adres, under an order for bail annexed thereto, • (whether the service and arrest be before the return day of the writ, or between the return day and the next term,) as the more extraordinary cases which may arise under the Act of 1827, permitting orders for bail to be granted at any time during the pendency of a suit; 6 Stat. 337; or under the practice sanctioned by this 14th section, for the sheriff to take a new bail bond after surrender of the principal to him by the bail. “ When the time for the party’s appear-. anee has passed, and the sheriff shall be required to take bail, the time to be expressed in the bail bond, in such case, shall be the term next succeeding the time when (he bond may be executed.” In a declaration upon a bail bond, thus taken, after the appearance day, the facts must be averred according to the truth; the circumstances which “ required the sheriff to take bail,” and the manner in which he took it. If, in an ordinary case, it be important to aver the lodgment of the writ marked for bail, and the bond accordingly taken for appearance at the return term, so, in one of the extraordinary cases, it is equally important to aver the order pending the suit, or the surrender by former bail, or other circumstances requiring the sheriff to take bail after the appearance term; and the bond taken, expressing the time for appearance at the term next succeeding its execution. If the averments be made in a manner wholly inconsistent with the facts proved, of course there will be a fatal variance. In the case before us, there is no propriety in saying that the particular matters erroneously averred were immaterial. Was the whole averment containing these particulars impertinent and unnecessary, so that it might have been stricken out, without destroying the plaintiff’s right of action'? See Bell vs. Lakin, 1 McMull. 370, and cases there cited, The averment in question is the all-important one, that the sheriff took bail; even if made more particular than it need be, it must be proved as made. But the particulars themselves were essential, inasmuch as the bail bond would have been void without proper authority in the sheriff, or if taken in improper form. The non-suit, then, cannot be set aside ; and the motion forleaveto amend cannot, of course, be granted, whilst the non-suit stands. No motion for leave to amend was made on the circuit: and the case of Glenn vs. McCullough, 2 McC. 212, shews that this court will rarely interfere to grant leave, by setting aside for that purpose, a non-suit properly ordered, even where a motion for leave has been made in the circuit court and refused, because it came too late.

Richardson, O’Neall, Evans, and Butler, JJ., concurred.  