
    *William Lytle, Administrator, v. S. W. Davies.
    Bond given for prison limits void, unless defendant is actually in prison, and that fact recited in the bond.
    Joint bond for prison limits given in several separate suits, void.
    This was a writ of er,ror prosecuted by the plaintiff, who was plaintiff in the court of common pleas, to reverse a judgment rendered against him in that court, and was reserved in the Supreme Court of Hamilton county for decision here.
    
      The suit in the common pleas was an action of debt brought against the defendant, one of several securities upon a prison bounds bond.
    The obligatory- part was in the usual form. Wm. Lytle, administrator of A. St. Clair being the obligee. The condition was as follows: 11 Whereas, Jacob Baymiller has been arrested by R. Ayres, sheriff of Hamilton county, on three several writs of capias ad respondendum, returnable to the next Supreme Court, in favor oi William Lytle, administrator, etc., amounting altogether to the sum of fifty-three thousand four hundred and nineteen dollars and thirty-five cents, and is in the custody of the said sheriff. Now the condition of the above obligation is such that if the said Jacob Baymiller shall well and truly stay and keep within the limits or bounds of the prison of the county aforesaid, as laid off by the statute in such case made and provided, until he shall be legally discharged by law, then this obligation to be void,” etc.
    The declaration was upon the obligatory part of the bond as upon an obligation for the payment of money, in general terms. The defendant craved oyer of the bond and of the condition, and demurred generally, and the plaintiff joined in demurrer. The court of common pleas gave judgment upon the demurrer for the defendant, to reverse which this writ of error was brought.
    The demurrer involved exceptions to the pleadings as well as to the validity of the bond itself. The general error was assigned, and the cause elaborately argued upon several points. But as the court decided upon the validity of the bond alone, only so much of the arguments as applied to that point are reported.
    *Wade and Hatward, and Hammond, for the defendant, objected to the bond :
    1. That it did not show from what court the process issued, who was the plaintiff in the action, or when or where it was returnable.
    2. That it did not specify within the bounds of what county the party arrested was to remain.
    3. That it was a joint bond upon three several writs, when a separate bond, on each writ, ought to have been taken.
    They argued-that, although it had been adjudged that a prison bounds, or an appearance bail bond, not taken according to the statute, was a good common law bond, there was no adjudication by which a bond like the present had been sustained.
    All the cases which could be adduced, in English or American reports, were those, where the bond distinctly recited from what court the process issued, when it was returnable','and who was the plaintiff in the cause. Upon what occasion the bond was taken, and by what act, of the party arrested, the condition would be performed. The condition recited an authority to take the bond, and a proper case for taking it. But in this case there is no such recitation. The condition was altogether vague and uncertain. It did not appear from what court the process issued, or who was the plaintiff, or when or where the party was to appear. It did not appear where the party arrested was to remain in custody, nor did it appear for what sum he was liable upon each writ. The condition was not only vague and uncertain, but the proposition that the sheriff might demand one joint bond, for three distinct liabilities, from the same person, enabled him to practice oppression whenever he chose to do so.
    Haines and Benham, for plaintiffs:
    We contend, first, that this bond complies substantially with the requisitions of our statute; and secondly, if not good as a statutory bond, it is good at common law.
    
    First, it is good under the statute.
    *In determining this question (as we must be governed, in some degree, by adjudicated .cases upon bonds taken under the statute of 23 Hen. 6, c. 9), it became important to advert to the distinction between the forms to be observed under that statute and under that of Ohio, “regulating prison bounds,” etc., in relation to which we refer to 1 Selw. 134 and 6 Bac. 180. The statute of 23 Hen. 6, “ is directed against oppression on one hand, and an improper indulgence on the other.” Consequently greater strictness is required under that statute than is to be expected under that of Ohio. As in this state, where the prison bounds bond is given direct to the plaintiff, there can be no such thing as “ oppression or improper indulgence ” on the part of the officer. We can know of no such thing as a bond void “for ease and favor ” or “ a colore officii.” But, in England, it is not required “ to set forth the nature of the action in the condition of the bond,” if it set forth the parties, and the time and place of appearance substantially, though it be variant in other particulars, it is sufficient. Therefore, “a variance between the condition and process in the nature of the action, or of the time and place of appearance, does not vitiate.” 1 Seld. 134; 2 Saund. 59, n. 3; Cro. Jac. 286. And in 2 Stra. 1155, the court said “that there were no set form, of words for those bonds, but if in substance they appear according to the design of the writ, it is sufficient,” etc.
    For numerous cases cited upon this question, Í refer to 1 Wheat.; Selw. 431, 432; 2 Saund. 59, n. 3, where all the English law upon this question is to be found.
    It is settled, in the English cases, that it is not essential to the validity of the bail bond that such part of the act of Henry 6, as is only directory, should be complied with', “ as if one surety is taken it is good, and not voidable by the statute.” 1 Saund. 161, n. 1.
    In the United States, we hold it to be well settled that a substantial compliance with the provisions of the statute is all that is necessary to give validity to a “ statutory bond.” That mere “ verbal difference and departure from the provisions of the statute does not vitiate,” and that if a bond is taken in “ a circumstance contrary to the provisions of the *statute (that is only prescribed for the direction of the officer as to take sureties ”), or, “ if anything is required specially by the condition that the act only imports but does not literally require," that such variations do not hurt.
    These principles are to be deduced from a great variety of cases, of which we will cite only a few. In the case of Ralston v. Lane, Hardin, 501, upon a appearance bail bond, the court decided “ that as a bail bond makes a part of the sheriff’s return, if there be such a correspondence between the writ and bond, that, by a reasonable intendment the bond may have been taken upon that writ it is sufficient. And further, that if nice and technical objections to bail bonds are indulged, few bail bonds will stand, and great mischief will be done, as they are generally taken by officers who are little versed in technical forms. It is necessary, therefore, to give them a liberal construction in furtherance of justice.”
    In same book, page 505, a bond was held sufficient, although “it did not state the nature of the action, the amount of damages, or that the plaintiff sued as assignee,” etc. The court say, “ that it is enough if a bail bond is certain to a common intent. And, as to the bail, they ought to make no objection, for it was their folly to execute the bond without knowing the amount for which they became bound,” etc.
    
      These principles are recognized in other states of the Union.
    In North Carolina, vide Rhodes v. Vaughan, 2 Hawks, 164.
    In South Carolina, in 3 Des. 57, “ a bond of the treasurer, etc., with three sureties where the statute required five persons or upward, was adjudged good.”
    In Tennessee, 4 Hayw. 216.
    In Virginia, 2 Call, 290, it has been decided that “one forthcoming bond may be taken on several executions.” These bonds present a strong analogy to bonds for the bounds, etc., and this case, and the case in 8 Johns. Ill,-where several executions were embraced in a prison bounds bond, answers the objection that three writs, etc., were embraced. The same principle is contained in the cases cited in the margin; and in 2 H. & M. 400, Judge Tucker ^observes, “ that when a party obtains an indulgence upon certain conditions, the court will not regard trifling errors,” etc. And again, in 1 Munf. 76, a prison bounds bond, given to the sheriff and his executors, administrators, etc., not to “ his successors in office ” (as the statute would require), was adjudged good, “ as there was no form prescribed by the statute.”
    In New York we find the same doctrine as in 1 Johns. 521, that in appearance bail bonds “ time and place need only be set forth substantially.” And in 8 Johns. 86, in “ a suit upon a bond for the jail liberties embracing three several executions,” the bond was held good, and Ch. J. Kent, in delivering the opinion of the court, remarked, “ that where there was no allegation or pretense of ex-hortion or undue means exercised by the sheriff in procuring the bond, it is right and just that the obligors should be concluded by that acquiesence,” etc.
    In Massachusetts we find the same doctrine. In 10 Mass. 20, a bail bond was held sufficient, although “ the names of both plaintiff and defendant were mistaken.” And in the analogous cases upon replevin bonds these principles have been repeatedly recognized, as in 8 Mass. 147, when the bond was conditioned “ that the plaintiff should prosecute at the next county court,” it was held sufficient.
    In 9 Cranch, 36, upon an “ embargo bond, conditioned in more than double the value,” etc., in the opinion of the court, by J. Story, the court say, “ that as there was no allegation or pretense of fraud, the bond must be taken to be a voluntary bona fide bond, and that the obligors were estopped to deny that the penalty of such a bond was in double the value of the vessel and cargo.” The court remarked, “ that it would be dangerous in the extreme to admit the parties to avoid a sealed instrument by averring an error,” etc. This is an important case, and overrules the case in 7 Cranch, 287.
    And in 1 Ohio, 170, we find that it has been settled in this state, “ that bonds comprising substantially all the requisitions of the statute are valid; and that it has been the uniform object of our courts to support such bonds,” etc. We deem it unnecessary to amplify upon this question, as *we apprehend there can be no doubt that this bond would be supported when tested by the most rigid rules applicable to statutory bonds. But we will merely add that the distinction between our bonds to the party and English bail bonds, and bonds in other states in the Union, when given to the sheriff, is an important one. With us there exists not the same reasons for applying the rules of the English law in relation to bonds taken under the statute of Henry 6, as with us these bonds can neither be abused to purposes of oppression nor improper indulgence, except by the construction contended for by the defendants. As in this state where the bond is given to the party, and the officer does not stand between him and danger (if informalities are permitted to vitiate), the officer could in all cases, by mere neglect of his duty, effect the escape of his prisoner, and the party would be without redress.
    But again, if this bond is not obligatory as a statutory bond, it is good at common law.
    We contend, upon undoubted principles of law, that independent of any statutory provisions the bond in question is valid, being neither “ malum in se,” nor “ malum prohibitum." That where a way “ may be found to perform the condition of a bond, without a breach of law, it shall be good.” 1 P. Wms. 189,190. In the English books, a distinction is taken between bonds given to the plaintiff, and bonds to the sheriff. The first are valid, although taken in an other form than that which the statute prescribes. See 2 Saund. 59, 60, notes; 2 Mod. 304; 2 Salk. 438. So a bond from one “to be a true prisoner and not to escape,” is good. 1 Saund. 161. And in 10 Co. 99, we find the same principle.
    In the United States the same prine iples are recognized. In New York, where the statute regulating jail liberties is similar to that of Hen. 6, the same rules prevail. In 2 Johns. 239, 244, a bond “to remain a true and faithful prisoner,” but differing essentially from the directory part of the act, was adjudged good; and the rule laid down, “ that a bond, taken by the sheriff to induce a less rigorous imprisonment, is good, if the indulgence be such as the sheriff can grant consistently with his duty.” “ The statute is ^directed against oppression, on one hand, and improper indulgence on the other.” This case was sanctioned by Judge Kent in 1 Caine, 459, in which it was settled “ that a bond to indemnify against an escape, given after an escape, was good.” The reason why a bond, to permit an escape, is void, is because it is to do an unlawful act; when the act is done, the reason falls.
    The same principle is recognized in Pennsylvania, 6 Bin. 296-298, in a suit upon the bond of aprothonotary, not required by law. The court decide, that it “ was valid at common law, as a voluntary obligation.” 2 Str. 745.
    In Massachusetts we find it repeatedly decided, “ that a bond given by a debtor in execution voluntarily, without fraud, or imposition, conditioned that he will continue a true prisoner without escaping,” is good at common law, although not in comformity to the statute of 1784. 7 Mass. 98, 423. Parker, J., 8 Mass. 380, remarks, that it has been determined, by this court, in two cases, that a bond given by a prisoner for debt, in which the penalty is more or less than double the amount of the debt and costs, in the execution, although not within the statute, so as to entitle the obligee, upon breach of the condition, to the whole penalty, is yet good at common law. Upon forfeiture, judgment may be entered for the debt and costs only.” 9 Mass. 229.
    In Virginia we find the same rule, as in 3 Call, 523, in which it was decided, “ that, if a forthcoming bond is not good, as a statutory bond, it may be good as a bond at common law.” This is a strong case.
    And it appears also from the “ dictum ” of this court, in the suit upon the “collector’s bond,” 1 Ohio, 271, that this would have been sustained at common law.
    From these cases we draw the inference that every bond given voluntarily is good and binding where there is no statutory provision against taking such a bond, or prohibition on the principle of the common law or of good morals.
    
    We contend, therefore, that as the bond in question was given voluntarily by the defendants, it ought to bind them. That as the plaintiff was compelled (under our peculiar statute) to accept this bond, thus given by the defendants, the act *was complete and became binding on both, and that, as there is no statute or principle of the common law declaring such bonds void, there can be no reason why it should not be held valid at “ common law.”
    
   By the Court :

Our statute provides, “that every person imprisoned for debt, either on mesne process, or in execution, shall be permitted and allowed the privilege of prison bounds.” The bond, in the case before us, recites that Baymiller has been arrested, and is in custody of the sheriff. But does not state that he was imprisoned. An arrest, and being in the custody of the sheriff, precede imprisonment, and are distinct and different from it. The-facts stated in the bond show that the case, in which the statute authorizes the bond to be taken, had not occurred. Baymiller was not imprisoned, but only arrested on mesne process. The sheriff, in that situation, could not legally discharge him, on taking a prison bounds bond. In doing so he permitted an escape.

The plaintiff’s counsel have cited many cases, in which bonds of this description have been sustained, though not taken strictly according to the law. But so far as we have been enabled to examine them, these bonds were taken, when, upon the circumstances attending their execution, they were legally taken. The facts existed which authorized the officer to take the bond, and the exception was to the form of the bond itself. But the ground upon which we hold this bond defective is that the officer had no authority, upon an arrest only, to accept it, and discharge the body. By doing so he could not affect the plaintiff’s,rights, who might insist upon a recaption,'or proceed against the sheriff for an escape. It was at his option to treat the bond as a nullity, but he could not by his assent give it validity.

The exception, that one bond is taken in three distinct suits, is also, in our opinion, a fatal one. The obligation is entire, and the whole penalty must remain, even if two of the suits were disposed of. It is in the nature of an appearance bail bond, and is, therefore, a part of the proceedings in the cause. For this reason it should be taken separately, so as to *be connected with the separate case to which it belongs, and separately proceeded upon, should it be forfeited. It would be vain and useless to attempt enumerating the many inconveniences which might arise from taking a joint bond, upon the execution of separate processes. The power to require such a bond might be used for very oppressive purposes. And where the statute does not authorize it, the court think they ought not to sustain it.

The plaintiff has cited two cases, in which a single bond was taken by the officer upon separate processes and held good. But we do not consider these cases analogous. In 8 Johns. 111, the exception was not taken by the counsel or noticed by the court. In stating the case, it is noticed that the bond was given upon three executions issued from a justice of the peace. We know not how far the law of New York might, in terms, warrant such a proceeding. As it formed no ground óf exception, we should infer that it was conformable to statute, or to a settled practice. However, as the point was not made nor decided upon, we can not consider the case an authority.

The case from 2 Cali, 290, was one where a forthcoming bond was taken, in two cases of suits against the securities of two separate sheriffs of the same county, under a special act of assembly directing the executions to be stayed, upon a forthcoming bond being given. The court, in their opinion, admit that it is not common to take a joint bond upon separate executions. They say the bond was so taken that neither party could be prejudiced. But they decide the cause upon the act of assembly, which they say “ rather points to one bond only.” We can not regard this case any more than the one from New York, as an authority to which our own opinions should be yielded. The unity and consistency of legal proceedings, and the safety and security of all the parties, require that a bail bond, or prison bounds bond, should be taken separately in each separate suit.

It is strongly urged by the plaintiff’s counsel that if defective as a bond under the statute, this bond is good at common law, as a voluntary bond.

The numerous cases cited to sustain this position are all essentially different from the one before us. The sheriff *takes a bond from the prisoner conditioned that he will remain a true prisoner. This is in the nature of a contract. It relieves the sheriff from an incessant vigilance, and it secures to the prisoner the enjoyment of his own time, free from the superintendence of the officer. The contract is a beneficial one to both parties, and, if not prohibited by law, would be deemed valid.

In the case of a forthcoming bond, the sheriff having legally levied upon the defendant’s property, restores it to him, upon taking a bond with security for its redelivery. If taken in a proper form, and returned with the execution, in Virginia, a very summary remedy is given on such a bond. But if not thus taken, it is still deemed a good bond, and may be sued upon as in the common case of a contract. And for this reason the contract was a valid one, made fora legitimate purpose, and operating beneficially for the obligor. There is-no case where a bond is unauthorized by law, and where no. advantage can result to any one, that a bond given under the belief that it is for a legal purpose, when it is not, is held valid.

If an officer, alleging he has process, when he has not, without making an arrest, take a bond for the prison bounds, where the obligor is actually the judgment debtor of the obligee, it would clearly be a voluntary bond, yet it would- undoubtedly be inoperative, because it was taken without authority, and could, in no respect, benefit the obligor.

So, in this case, Baymiller not being in prison, the sheriff had no authority to take the bond. It was therefore voluntary. But it did not preclude the plaintiff from retaking the defendant had he chose to do so, or from proceeding against the sheriff as for an escape. Had the defendant been retaken, would the bond have been obligatory? If it would, he certainly received no advantage from it. If it would not, the reason must be that it was void from the first. There is nothing in it, by which its obligation can be made to depend upon the act of the plaintiff. In declaring this bond inoperative, we impugn none of the decisions adduced by the plaintiff in support of it; on the contrary, we conform to the principles upon which those decisions rest.

Judgment affirmed.  