HARVEY US. GOODMAN. A scire facias against bail described the condition of the bond as follows, that the said John Swayne should well and truly make his personal appearance at the said return term of the said capias, to answer the said Fielding G. Goodman according to the requirements of said capias," The condition of the bond read in evidence was, "that if Swayne will appear at, &c, and answer the complaint, of Feilding G. Goodman, in a plea of trespass on the case, and not depart without leave of the court, then" &c.: Held, that the variance was fatal. A condition in a bail bond, simply to appear and answer to the action; &c, is insufficient-the condition ought to be "that the defendant will appear, and if condemned in the action, will satisfy the judgment of the court, or render himself to prison," This was a scire facias against the defendant, as special bail of John Swayne. Several pleas were filed, and amongst others, the plea of nul tiel record. In the argument of the case, several points were raised which it is not necessary to notice, as the opinion of the court is founded on one only, to wil, whether there was a variance between the condition of the bond as stated in the scire facias, and that offered in evidence, under the plea of nul tiel record. The difference between the condition of the bond, and as it is recited in the sci. fa. is shown in the opinion of the court. T. P. Scurlock, M. Brown and R. P. Rains for plaintiff in error. Moore and Jennings, for defendant. GREEN J. delivered the opinion of the court. The question in this case, arises upon the plea of nul tiel record, to a scire facias to charge the plaintiff in error as bail for John Swayne, on the execution of a writ of capias ad respondendum, at the suit of the defendant in error. It is insisted, there is a fatal variance between the condition of the bail bond, as set out in the sci. fa. and the one produced in evidence. The sci. fa. describes the bond to be conditioned, "That the said John Swayne should well and truly make his personal appearance at the said return term of the said capias, to answer the said Fielding G. Goodman, according to the requirements of said capias. JACKSON. April, 1836. Harvey, V. Goodman. JACKSON. April, 1836. Harvey, V Goodman. The condition of the bond produced in evidence, is, that "If Swayne will appear at &c., and answer the complaint of Fielding G. Goodman, in a plea of trespass on the case, and not depart without leave of the court, then" &c. The question here made, depends upon the sufficiency of the condition, as set out in the sci. fa. to render the bail liable, In England, upon the execution of a writ, the sheriff takes a bail bond payable to himself, conditioned that the defendant appear and answer to the action. If he fails, the bond is forfeited, and the sheriff assigns it to the plaintiff' in the action. Petersdorf on Bail 204. This is called bail below, or bail to the sheriff. As the bond is conditioned for the defendant's appearance in court, on the return of the process, it is obvious that in strictness of law, nothing can be a performance of that condition, but effecting what is technically termed an appearance. This is accomplished by putting in special bail to the action, or bail above. Special bail undertake, that the defendant if convicted, shall satisfy the plaintiff or render himself to proper custody. Petersdorf on Bail 267. The form of the undertaking is this "you (naming the bail) do jointly and severally undertake, that if C. D. should be condemned in this action, at the suit of A. B. he shall satisfy the costs and condemnation, or render himself to the custody of the Marshall of the Marshalsea of the court of King's bench, or you will do it for him." Petersdorf on Bail 289. Thus stood the law in North Carolina, until the passage of the act of 1794, c. 1. That act provides in the eleventh section, that when a writ shall issue, commanding the sheriff to take the body of any person to answer to any action, the sheriff shall take bond, with two sufficient securities in double the sum for which such person shall be held in arrest, and shall return such bond with the writ. The twelfth section makes it the duty of the sheriff to assign the bond to the plaintiff in the action, and gives the form of an assignment. The 14th section enacts that "all bail taken according to the directions of this act, shall be deemed, held and taken to be special bail, and as such liable to the recovery of the plaintiff.' As this act of assembly does not prescribe what shall be the to enter. condition of the bond, which the sheriff is required to take, but only declares its legal effect;-which legal effect, being the same to which special bail before its passage were subject, it would seem to follow, that the condition of the bond, ought to conform in substance to the terms of the undertaking into which special bail theretofore were required Under this act, the condition to appear and answer to the action (which was the undertaking of bail below) would be wholly useless.-The object of the bond is, that the defendant shall satisfy the judgment which may be rendered against him, or surrender himself to prison or the bail will do it for him. As this is the undertaking intended by the Statute, the obligation into which the parties enter, ought to be expressed in terms, the meaning of which would constitute such undertaking. The condition therefore ought to be "that the defendant will appear &c, and if condemned in the action, will satisfy the judgment of the court, or render himself to prison. In the case before us, the bond is, that "he will appear to answer the complaint of Fielding G. Goodman, in a plea of trespass on the case and not depart without leave." This, although a very loose and indefinite expression of the character of the undertaking, may yet mean, that he would be forthcoming to render himself to prison, until he should be discharged from all liability to the plaintiff, either by a judgment of the court in his favor, or by the satisfaction of such judgment as might be rendered against him. Whether this is a sufficient undertaking of the party, to hold him liable as special bail, it is not necessary to decide. Certain it is, that a condition simply to appear and answer to the action, would not be sufficient. The Legislature did not intend, that the bail should undertake in the bond for one thing, and be liable by law for another. We therefore think, that as the sci. fa. only recites that the condition of the bail bond was that "Swayne should well and truly make his personal appearance at said return term of said capias, to answer the said Fielding G. Goodman according to the requirements of said capias," there is a material and fatal variance between this recital, and the bond offered in evidence upon the plea of nul tiel record. Judgment reversed. JACKSON April, 1836. Harvey V Goodman. JACKSON. April, 1836. Graham V Swearingin, etc. GRAHAM US. SWEARINGIN et al. A. hired a slave for which he covenanted to pay for his hire $110, and also covenan ted in the same instrument, "to deliver to said administrator at Bayless and Davis' store in Memphis, said slave at the end of the term." Before the expiration of the term A attempted to moderately correct the slave for misbehaviour, upon which he ran away, and notwithstanding A used proper and necessary diligence to recover him, he finally escaped, and consequently was not delivered at Bayless and Davis' store. Held that A was not liable on his covenant for the vaiue of the slave. Courts construe covenants with reference to the subject and nature of the contract. This is an action of covenant founded upon an instrument under seal, in the following words, "$110, On the 17th day of December next, we or either of us promise to pay J. Graham, administrator of Geo. F. Graham deceased, one hundred and ten dollars and cents, it being for the hire of a negro man named Jeff, for twelve months from this date, and to deliver to sid administrator at Bayless and Davis' store in Memphis, said negro at the end of the term, as witness our hands and seals, November 17th, 1831." The breaches assigned in the declaration were, first, the non-payment of the money, and secondly, the non-delivery of the negro. And for plea to the second breach, the defendants below in substance pleaded, that they hired for the sum in the covenant mentioned, a negro boy Jeff, to be employed in the work, labor and occupation of a servant and common laborer, that he was so employed, that his necessary and comfortable clothing, medical attendance and provisions were furnished by defendants, that said negro was of unruly disposition, and that said defendants attempting moderately to chastise, as they lawfully might said negro, he forcibly broke from them and absconded before the term of his hiring expired, of which the plaintiff had immediate notice, and that the defendants used all possible means in their power by instant pursuit and by advertisements of reward to regain possession of said negro, and were unable by all possible diligence and exertions to apprehend said negro, and that by means of such forcible absconding, the said negro was out of the possession of defendants. This plea was demurred to, and the demurrer overruled in the circuit court. A. L. Martin and Davis, for plaintiff Thos. Turley, for defendant in error. REESE J. delivered the opinion of the court. The question before us is, whether the circuit court erred in overruling the demurrer to defendants plea. The whole question of course, turns upon the construction of the above covenant, and is whether the promise to return or redeliver the negro, because expressed in writing and under seal, shall be construed as a special contract and undertaking, constituting in its legal effect the defendants insurers, and binding them at all events to return and redeliver the negro? We answer this question in the negative, upon the authority of the cases to which we shall refer, and if we could look in this case to the sense and understanding of society, and the course of contracting and dealing in such cases, for the purpose of putting a construction upon the instrument, as we can look upon the nature and character of the property which constitutes the subject of this contract of bailment, the question upon principle also, would be clear of all difficulty. In the case of Harris vs. Nicholas, 5 Munford's Rep. 483, the covenant was "for the hire of four negro fellows the present year, who are to be returned well clothed, on or before the 25th of December, I promise to pay," &c. Breach assigned "that one of the negroes was not returned," &c., plea that the negro in question departed this life before the 25th December. Judge Roane pronouncing the opinion of the court says, "that if the covenant stated in the declaration can be considered as a covenant to return the negro in question, as well as to coerce the payment of the money due for his hire, it ought not to be considered as a covenant to insure such return in the event which has happened, especially under the usage and understanding of this country in relation to the subject." The principle of that case is identical with the one before the court. That courts construe covenants with reference to the subject and nature of the contract, is shown in the case of Lockridge vs. Carlisle, 6 Randolph's Rep. 20. The covenant was in these words, "received of John Carlisle notes on men in Virginia for collection to the amount of nine hundred and ninety-six pounds, which I will be bound to him for the amount: given under my hand and seal," &c. The court JACKSON. April, 1836. Graham V Swearingin, etc. |