Justices of the Inferior Court v. Ennis

iBy the Court. Nisbet, J. delivering the opinion. [1.] The question made in this case, occurred on a motion to arrest the-judgment. The declaration on the bond, charges that ¿Bryan gave the bond sued on as constable, that he entered upon ¡the duties of his office, andas constable, made default. For this ■default, which is specially set forth, the surety, who is defendant in error, is sought to be made liable. The Court below arrest-ad the judgment, upon the ground that the bond upon which the' ¡action is founded, is void, because not in terms of the Statute. The Act of ,1818, [Prince,) 509, under which it was taken, requires •that constables shall give bond, with two or more securities. This 'bond was made with one security only, and in that, the non-conformity is said to consist. There may be some doubt whether this bond is not a good statutory bond. The Act of 1818, does not, nor does any other Act in relation to constables’ bonds, declare the form of the bond, or say that any bond not taken in conformity with the provisions of the law shall be void. That being the case, the rule is well settled, that so far as the bond complies with the Act, it is good as a statutory bond. The objection to this bond, is not that it exceeds what the Statute requires, but falls short of it. It was a better objection in the mouth of the public, whose interests are to be protected by the bond of the •officer. So far as it is in compliance with the Act, it would seem to be good, and it complies in part with its requirements. There is one view of it, however, that sustains the idea of its invalidity as a statutory bond. The sureties are entitled to contribution. 'The Statute requiring two, confers a right upon each surety, that •is, the right of having a co-surety, to share final losses with him. By taking only one security, this right is defeated. The objection has force in the mouth of the one surety, who is to be charged with this default. Be this as it may, our judgment is, that the bond is good as a voluntary bond, by the Common Law. It was executed by Bryan and the defendant; duly delivered to the [571] persons authorized to take it; Bryan entered upon the duties of his office, and in that office made default. All these things are set-' forth in the declaration, and the verdict of the jury finds them to be true. According to the principles settled by this Court, in the two cases of Stephens et al. vs. Geo. W. Crawford, 'for the use of Ward, 1 Kelly, 574, and Stephens et al. vs. Geo. W. Crawford, use of Breedlove, 3 Kelly, 499, this is a good bond at Common Law. As those principles are fully discussed in those cases, I will not travel over the same ground here. Let the judgment of the Court below be reversed.