Barnard v. Viele

21 Wend. 88

Opinion

By the Court,

Nelson, Ch. J.

The demurrer is well taken. The statutes prescribe the terms of the condition of the bail bond, and it must be complied with. It differs from the old statute, 1 R. L. 423, § 13. Although the terms prescribed in the new, were before, according to the practice of the court, necessarily to be complied with in performing the condition of the old bond, and therefore the old and new conditions would seem to be in legal effect the same, still the terms are now, by the statute, to be expressed in the condition, The legislature may have thought this useful, as advising the parties distinctly what is essential to performance—an idea suggested by the revisers, and which doubtless led to the change.

We may regret the departure from a form and usage whichthad so long been in existence, for, the attainment of so unimportant an object, but this affords no ground for disregarding a positive enactment. Besides, another section of the revised statutes, 2 R. S. 286, § 59, -is very explicit, that no sheriff or other officer shall take any bond, &c. by color of his office, in any other manner than such as are provided by- law; and if he does, it is declared that the bond shall be void.

Judgment for defendants.