
    Stuart and Others v. Lee, Governor, &c.
    [Friday, November 4th, 1803.]
    Bonds — Statute Directing to Be Paid to Justices —Effect When Made Payable to Governor. — If an act of Assembly directs, that a bond shall be payable to the Justices, and that the penalty shall be 1.0001.: If the bond be taken payable to the Governor, and the penalty be 10,0001. and a suit thereon Is brought by a succeeding Governor for the benefit of a party injured, it cannot be sustained.
    This suit was brought in the name of Lee, as Governor and successor of B. Randolph, who was successor of E. Randolph, against Ward, Stuart, Renick, Anderson, Clendeneon, Reid, Banks and Johnston, upon a bond given by Ward, as Sheriff, on the 26th of April, 1787, in the penalty of 10,0001. ; and conditioned for the faithful performance of the duties of his office. The declaration was in the form of a declaration upon a common bond for payment of money: The writ being executed on Stuart, Renick, Anderson, Reid and Johnston only, they plead conditions performed; and the plaintiff for the benefit of Burnsides, assigned a breach in Ward’s suffering a prisoner committed to his custody, by the County Court, *at the suit of the said Burnsides, to escape. The defendants traversed the escape. — Issue.'—The jury found that the escape was through negligence, and assessed the plaintiff’s damages to 1731. 2s. 9d. The defendants moved to arrest the judg-ment, because an action of debt does not lie against a Sheriff for an escape on mesne or other process, either at common law or by statute; but the District Court decided for the plaintiff: And thereupon, the defendants obtained a writ of supersedeas from this Court.
    Wickham, for the appellants.
    The suit could only be maintained under the act of Assembly, and, therefore, the bond and proceedings must be conformable thereto, or they are void. But, the act of 1755, ch. 2, declares that the bond should be made payable to the King. Old body Laws, 325, 6, [6 Stat. Larg. 482:] And, by the act of Convention, all bonds formerly made to the King, should now be made payable to the Justices of the county, [c. 5, '£ 8, 9 Stat. Larg. 128.] Of course, it does not pursue the law. Besides, the penalty of the bond is for 10,0001. whereas the law only prescribed 1,0001. : Which charges the securities further than the law intended ; as writs of scire facias may be sued until the penalty is exhausted. It is not a voluntary bónd; for, the law compels the Sheriff to give bond: So, that it is not an act in pais; but done under the authority of the law, which, therefore, ought to have been pursued. But, the other objection is equally fatal; for, it ought to have been made payable to the Justices, and not to the Governor.
    Bennet Taylor, contra.
    The justice of the case is certainly with the appellee; and the decisions of this Court support him in his claim. [Hewlett v. Chamberlayne,] 1 Wash. 367; [Scott v. Hornsby,] 1 Call, 41; [Beale v. Dowmnan,] lb. 249. Which cases shew, that although the bond is not agreeable to the statute, yet it is good at common law. The same argument applies to the present case, ii'or, although the bond does not pursue the statute, yet, *as there is nothing in it repugnant to the rules of law, it will be good at common law. Besides, the Court might add to t[he judgment, that future writs of scire facias should not be issued beyond 1,0001., and thus obviate the argument with regard to the sureties being further charged than the act prescribed. In Branch v. The Commonwealth, 2 Call, 510, the point concerning the bond’s being made payable to the Governor occurred, but was not decided. However, there appears to be no cause of objection upon that ground, after the decisions already referred to.
    Wickham, in reply.
    The Court cannot apportion the penalty according to what is contended for on the other side; for, the sum is certain, and judgment must be entered for it. The cases cited do not apply. That of Scott v. Hornsby, 1 Call, 41, was a case which depended upon calculation only; and, therefore, has no resemblance to the present, which is bottomed upon an act of Assembly ; and that ought to have been pursued. A similar answer may be given to Hewlett v. Chamberlayne, 1 Wash. 367; for there, a particular penalty and certain obligees, were not prescribed, as there are in the present case.
    Cur. adv. vult.
    
      
       Statutory Bonds— Failure to Execute i)i Pursuance of Statute — Effect.—On IMs question, the principal case is cited in Winslow v. Com., 2 Hen. & M. 463; Monteith v. Com., 15 Gratt. 186; Gibson v. Beckham, 16 Gratt. 330; Porter v. Daniels, 11 W. Va. 256. See Branch v. Com.. 2 Gall 510; also, monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
   ROANE, Judge.

I am of opinion, that the judgment ought to be reversed for the reasons assigned by the appellants’ counsel. As this action is, by the successor of the Governor, for the benefit of persons injured, it is to be brought under the act of Assembly ; and the only question is, whether it is sustainable under it or not? It is not: By the then law, the bond should have been given to the Justices: A 1,0001. also, is stated, in the act, as an essential part of the condition; and, therefore, not to be varied from.

*ELEMING, Judge.

The bond is not taken as the act of Assembly directs; for, by that, it should have been made payable to the Justices, and the penalty should have been 1,0001. only. The suit is brought upon it, however, as a bond taken under the act; and, therefore, the action not sustainable. I am, consequently of opinion, that the judgment ought to be reversed.

LYONS, Judge.

The Court are unanimously of opinion, that the judgment is to be reversed; and the entry is to be as follows :

‘‘The Court is of opinion, that the said judgment is erroneous in this, that as the bond in the declaration mentioned, on which the suit is brought in the name of the said Henry Lee, esq’r. Governor of the Commonwealth of Virginia, as successor to Beverly Randolph, &c. as above mentioned, was not taken pursuant to law, or the act of Assembly in such case made and provided, no action can be had or maintained thereon by the said Henry Lee, esq’r. in his character of Governor or successor in office only; therefore, it is considered that the same be reversed, and that the appellants recover their costs against the said defendant Burnside.” ,.  