Embree v. Norris & Keith

ORMOND, J. — By the common law, the sheriff was bound to produce the body of the defendant in Court, at the return of the writ, and. was not bound to take bail for the appearance of the party, unless he sued out a writ of mainprize, though he might do so, if he thought proper. But this giving rise to ex [273] tortion and oppression, the statute of 23rd, Henry 6th, was passed by, the 10th section of which, the sheriff was required to let out of prison all persons in custody, of any writ, bill, or warrant, upon reasonable sureties of sufficient persons, upon, condition, “ that the person shall appear at the day and place contained in the writ, bill, or warrant.” The defendant being thus at large, it was his duty to appear at the return of the writ, and put in bail to the action, or special bail, as it was called, which was a recognizance entered into, before the Court or one of the judges, by which the bail undertook that, if the defendant was convicted, he would satisfy the plaintiff, or surrender himself into custody. This was substantially adopted by the Legislature of the Mississippi Territory in 1807, by which the sheriff was required “ to take a bail bond, with sufficient security, in the penalty of double the amount of the sum, for which bail is required in the endorsement on the writ.” The condition of the bond thus to be taken, is not given by the law, but that it was merely intended to secure the appearance of the party, is evident from other parts of the same statute. By the 6th section of the same act, it was provided that, when special hail is required, the defendant may go before any of the Territorial Judges, or any justice of the peace, and with his securities enter into a recognizance of special bail, the form of which is provided in the statute. By the 4th section of the same act, it was enacted that, when the defendant was committed to prison for want of bail, “that the plaintiff may enter an appearance for the defendant, and proceed to judgment as in other cases.” It is therefore manifest, that the Legislature considered the bail which the sheriff was required to take, was common or appearance bail, in contra-distinction to special bail, and although the condition is not stated in the statute, it cannot be required to be greater than the exigency of the case — the appearance of the party. The difficulty is created by the 7th section of the same law, which declares that “ all bail taken by virtue of this act, shall b e deemed, held, and taken as special bail, and as such be liable to the recovery of the plaintiff;” but as the bail here referred to, was evidently mere appearance bail, we do not think it [274] reasonable, that the legislature intended any alteration of the condition of the bond, they had previously'required to be given for the appearance of the party; but merely intended to supersede the necessity of requiring special bail, which imposed the necessity of entering into a recognizance, by declaring that the bail bond, for the appearance of the party should have all the effect in law, of a recognizance of special bail. It follows from this, that a bail bond executed in the usual form, for the appearance of the party, is by operation of law bail to the action, and subjects the sureties to the responsibilities of special bail. The condition of the bail bond in this case, which is for the appearance of the defendants in the original cáuse, at the return term, and for their attendance from term to term, until discharged by due course of law, is sufficient. The breach of the bond, as recited in the scire facias is, “ that the defendants have failed to deliver their' bodies to said Circuit Court, or to the sheriff of said county, and their said securities in said bond having also failed to deliver the bodies of said defendants to said Court, or to the sheriff of said county, or otherwise to discharge said bond whereby,” &c. The undertaking of special bail, which as has been shown, is the legal effect of this bond, is that, if the defendant is cast in the action, he, the defendant, will pay and satisfy the condemnation of the Court, or surrender his body, or that the bail will do it for him ; and the breach assigned must be as broad, as the undertaking of the bail. Here it is not alledged that the defendants have not satisfied the condemnation of the Court; it does not therefore appear that there has been any breach of the condition, from which alone the liability of the bail could arise. The general allegation “ or otherwise discharge said bond” might be sufficient after verdict but cannot be deemed sufficient on demurrer. The judgment must therefore for this cause be reversed, and the cause remanded.