
    Allen against White.
    
      December, 1824.
    A bail bond conditioned for the appearance of the principal at a day different from that prescribed court void.
    THIS was a scire facias at the suit of David White against Wm. B. Allen as the appearance bail for Thomas K. Roberts, The writ of capias and bail bond were dated 1st day of October, 1821, the writ returnable to the Circuit Court of Dallas County on the fourth Monday in February next. The bail bond conditioned for the appearance of Roberts at the next term of the Court above mentioned, on the second Monday in February. Allen plead nul tiel Record, on which the Circuit Court rendered judgment against him. Allen assigned here as Error that the condition of the bond required Roberts to appear at Court at a time when there was no Court held by law.
    
      The Counsel for the defendant in Error being requested by the Court to begin,
    
      H. G. Perry for defendant in Error.
    The Statute prescribes no form for the condition of the bail-bond. If it had been to appear at the next term, it would have been sufficient. The principal and his bail were bound to know the time appointed by law for the sitting of the Court. 6 Com. Dig. Pleader D. Then the words in the condition. “ on the second Monday in February” were mere surplus-age ; but the time for holding the Court is correctly stated in- the writ, which, in the order of the Record, is prior to the bail bond; and by our Statute of jeofail, the bail bond is to be regarded as amended by the writ. -
    
      Thorington for the plaintiff in Error was stopped by the Court.
   Judge 'Ellis

déliveréd the opinion of the Court.

By láw the bail is entitled to discharge himself by surrendering his principal to the Court or to the Sheriff, and is liable, on the bond only in case ' of failure of the principal to appear as required by the condition. For aught that appears, the principal may have appeared at the time required by the. condition, and the bond have been literally complied with.

The judgment must bé reversed.

Judge Saffold not sitting.  