Neil v. Morgan

Walker, J. It will not be controverted, that at common law, an obligation, signed and sealed by other persons than those named in the body or condition of the instrument, will bind all to its terms and conditions. If this was such a bond, there would be no question of its validity, and that all who had executed it will be bound for its performance. It is, however, insisted, that as this is a statutory bond, that the omission to insert the names of Sidney S. Morgan, and Peter W. Peckham, either in its body, or in the condition, as to them, it is unauthorized and void. If this constitutes a material omission of the requirements of the statute, then such must be the effect, but if, on the contrary, the provision is only directory, its omission will not/affect its validity. By a reference to English cases, it will be found that a bail bond which conforms substantially to their statute, is held to be sufficient, although there may be technical defects. 2 Levinz, 123; 6 Mod. 122; 6 T. R. 702; 2 Strange, 101; 9 East, 55. In the case of Reynolds v. Gore, 4 Leigh, 276, it was held that where by mistake the name of the security is omitted in the body of the bond, but a blank was left where it should have been inserted, that the bail was nevertheless liable. This case is almost in point, and establishes, like the English decisions, the doctrine that a substantial compliance with the statute will suffice. The case of Adams v. Hedgepeth, 5 Jones’ N. C. Law Rep. 327, announces a different rule, yet the court in their opinion say, that they had previously held that such an omission in an administrator’s bond, was immaterial. The court assigns no reason for the distinction in the two cases, nor is any perceived. They are both statutory obligations, and depend upon the statute for their validity. In this case the securities must have known that they were executing a bail bond, not as principals, but as securities, as they were not sued or arrested, and the instrument recited that the principals had been. They also knew, that the object of the bond was to procure the release of the” principal from custody. This they no doubt intended to do, and when they read the bond and condition, and executed it, they must have intended to become liable if the condition of the bond was not performed. By executing the bond they obtained the release of the principal, and the plaintiff in the original action no doubt relied upon it as good and sufficient. In the administration of justice, mere technicalities, unless positively required by the law, should not be regarded, especially when they stifle justice, defeat the intention of the parties, and tend to no beneficial end. We regard this bail bond a substantial compliance with our statute, supported by authority, and it must therefore be held valid and binding. The judgment of the court below must be reversed,, and the cause remanded. Judgment reversed.