Tucker v. Davis

By the Court. Lumpkin, J. delivering the opinion. There ajp three points made in the bill of exceptions. It is only necessary to consider one of them. [1.] The bail excepts to the legality of the bond, upon which it is proposed to charge him. The condition of the bond is, that the principal shall, in the event of his being east, surrender his body in execution; or, on failure, the security shall do it for him; whereas, the form of the bond prescribed by law is, that the principal shall pay the debt, surrender himself in execution, or the bail shall pay it for him. Here, then, there is a stipulation omitted, namely: that the principal may discharge the obligation, by paying the debt, which is for the benefit of the bail; and one is inserted, which is not authorized, and which is prejudicial to the bail, namely: that upon failure of the principal, to surrender his body, that the bail will do it. The law imposes no such duty; he may discharge himself, by surrendering his principal to the jail or Sheriff; he is not bound to do so. Now, the doctrine is this: if a bond contains a condition not required by the law, but which is beneficial to the security, it does not vitiate the bond; but if a condition is inserted, not [575] warranted by the law, and which is onerous to the security, or omits one for his benefit, the instrument is void. The application of these tests, to this paper, is fatal to it. We are constrained, therefore, to reverse the judgment below, and send the cause back, with directions to enter a non-suit.