
    Lavander W. Conant vs. Horace Sheldon & another.
    A bail bond taken by a deputy sheriff to himself, instead of to the sheriff, is void.
    Scire facias against the defendants, as bail of Gardner Sheldon. The parties agreed that the bail bond was taken to a deputy of the sheriff of Worcester in an action returnable to the court of common pleas for this county; and submitted to the decision of the court the question whether the defendants were legally liable thereon.
    
      J. W. Fletcher, for the plaintiff.
    A bail bond is in the nature of a contract, the essence of which is, that the principal shall be brought into court, so that he may be taken on execution. Harrington v. Dennie, 13 Mass. 93. The defendants have entered into this contract voluntarily, and cannot avoid the bond on the ground that it does not conform to the' precise language of the statute.
    
      
      C. Devens, Jr. for the defendants.
    By the Rév. Sts. c. 91, § 1, “ when bail is taken in any civil action, it shall be taken, as heretofore practised in this commonwealth, by a bond to the sheriff, if the writ is served by him or his deputy.” A bail bond taken by a deputy to any other officer than the sheriff of the same county is void. Smith v. Adams, 12 Met. 564.
   Dewey, J.

The liability of these defendants to be charged as bail depends upon the validity of the bond executed by them. This bond was given to the deputy sheriff who arrested the defendant in the original suit. Such bond is clearly invalid in law, either under the English St. 23 H. 6, c. 9, or under our Rev Sts. c. 91, § 1. 2 Saund. 59, note. Smith v. Adams, 12 Met. 564.

Judgment for the defendants.  