#### JOHN TURNER, TO THE USE OF MINNICK MILLER, *vs.*STEPHEN A. WHITE.

A suit was brought in the County Court and a bail-bond given for an appearance in that Court; there was an appeal and final judgment in the Supe*117rior Court; it was *Held*that a sei. fa., to charge the bail, could only be brought in the Superior Court.

In a sci. fa. to subject bail, it is sufficient to set out that there was a judgment, without stating the form of action in which it was obtained.

It is sufficient to allege, generally, in a sci. fa. against bail, that he became bound, as bail, at the time of the execution of the original writ, and liable by virtue of an Act of Assembly.

An inconsistent recital in a bail-bond as to who was the party plaintiff, may be rejected as surplusage where there is enough besides, on the face of the instrument, to show who really was the plaintiff.

So, where the bail-bond was assigned to A, “ the plaintiff therein named,’’ and the bond showed that the plaintiff was B, who sued to the use of A, it was *Held*that B was entitled to the remedy by sci. fa.

Soiee eaCias against bail, tried before his Honor, Judge Manly, at a Special Term (June, 1856,) of Orange Superior Court. Pleas — “ *nul tiel*record,” “ *non est factvm”*“ no assignment.”

The sci. fa. was brought in the Superior Court of Orange, and is substantially as follows: “Whereas, John Turner, to the use of Minnick Miller, lately in our Superior Court of law, held, &c., by the judgment of the said Court, recovered against John A. Butler, a certain debt of $170, with interest, &c., and Stephen A. White, at the time of the execution of the original writ, in the above cause, became special bail, in the said suit, for the said John A. Butler, and liable, by virtue of an act of the General Assembly, to abide and perform the judgment of our said Court, or surrender the said principal into custody, in case he fail to do so in discharge of his said bail, which, hitherto in all things, both principal and bail have failed to do, as we have been informed ; we, therefore, command you, that you make known to the said Stephen A. White, that he be, and appear, &c., to show cause, if he has any thing to say, why the said John Turner, to the use of Minnick Miller, ought not to have execution against him for the debt, damages and costs, &c.”

The original suit, which was in the name of John Turner to the use of Minnick Miller against John A. Butler, was begun in the County Court of Orange.and brought up by appeal; *118and the judgment finally taken in the Superior Court.

The condition of the bail-bond, taken in the case, is as follows : “ If the above-bounden, John A. Butler, who has been arrested by the said R. M. J., sheriff, as aforesaid, upon a writ returnable to the County Court of Orange, at the suit of *Mimiielc*Miller, does well and truly make his appearance at the next County Court, to be holden, &c., then and there to answer to the said *John Turner to the use of Minnielc,*Miller, to a plea that he render unto him the sum of $170, which he owes, and from him detains, to his damage $50, and then and there to stand to, and abide by, the judgment of the said Court, and not depart the said Court without leave, and the said Stephen A. White, the security of the said John A. Butler, well and truly discharge himself, as special bail, of the said John A. Butler, in the said Court, then the above obligation to be void, otherwise to remain in full force and effect.”

To which is the following assignment: “I, Richard M. Jones, sheriff of the county of Orange, do hereby assign over the above obligation and condition to Minnick Miller, *the flai/ntiff therei/n*named, his executors and administrators, to sue for, and recover, agreeably to an act of Assembly, in such case made and provided. Given under my hand and seal, &c.”

The defendant offered the following objections to the plaintiff’s right to recover.

1. That the *sei. fa.*ought to have issued from the County Court, and not from the Superior Court.

2. The *sei. fa.*does not set out the form of the original ac^ tion, nor does it show how the defendant became bound as bail.

3. The condition of the bond, offered in evidence, recites that Minnick Miller is the plaintiff in the suit.

4. That the condition of the bond is repugnant and void,

5. That the assignment of the condition of the bond is to Minnick Miller, and not to John Turner.

Ilis Honor decided all these points in favor of the plaintiff, except the last, and as to that he permitted the sheriff of Orange, on motion of plaintiff, and on payment of all costs of *119suit up to that time, to come in and amend bis assignment. For all which, the defendant excepted.

The issues were found for the plaintiff. Judgment and appeal.

*Bailey*and *Turner,*for plaintiff.

*Norwood,*for the defendant.

Pearson, J.

1. The sci. fa. is based upon the judgment, and properly issued from the Superior Court, where final judgment was rendered. The judgment in the County Court was vacated by the appeal, and there was no record in that Court upon which to issue a sci. fa.

2. In this proceeding the form of the original action is immaterial. That matter is concluded by the judgment, and nothing behind it is open for enquiry. So, it is sufficient for the sci. fa. to set out the fact of there being a judgment, and the fact, that the defendant became bound, as bail, at the time of the execution of the original writ, and liable, by virtue of an act of the General Assembly, &c. This puts it in the power of the defendant to deny the existence of the judgment by the plea of “ nul tiel record,” and to deny his liability, as bail, by the plea of “ non est factum.” There can be no necessity for incumbering the record by a more detailed statement of the manner in which the defendant became liable as special bail; for there is only one way in which it could be done by virtue of the statute ; that is, by the execution of a bond in double the sum for which the party was arrested; and we can see no objection to this general averment of the fact of the defendant’s liability, as special bail, by force of the statute. In *Neal*v. *Hussey,*3 Jones’ Rep. 70, and *Malpass*v. *Fennell,*Ibid. 79, it is held', that in a sci. fa. to charge a sheriff, as special bail, it is sufficient to aver that he arrested the defendant and failed to take bail, whereby, &c.

3 and 4. The recital that Butler had been arrested, upon a writ, at *the suit of Minnielc Miller,*is inconsistent with the wording of the condition, “ does well and truly make his ap-*120jiearance, &c., tben and there to answer *the said John Corner to the use of Minnioh Miller,*of a plea, &c.” Rut this recital may be rejected as surplusage under the maxims “ *ut res magis valeat gua/tn perreatf*and “ *utile per inutile non*vitiatur,” and enough will remain to identify the writ, under which Rutler was arrested, as a writ in the name of John Turner to the use of Minnick Miller. See the cases of *Miller*v. *Cherry*(in Equity) and *State*v. Harvell, (ante 55,) decided at this term, where the distinction between averments in pleading and matter set out in deeds, bonds, &c., is discussed, and it is held that, in regard to the latter, a want of correspondence, where there are several descriptions, is not fatal, provided the identity of the subject can be fixed by such parts of the description as do correspond.

5. The same principle applies to the assignment, and relieves it from objection, by striking out “Minnick Miller” as surplusage. So that it will read, “ hereby assign the above obligation and condition to the *plaintiff therein naoned,*his executors, &c., to sue for and recover, agreeably to the act of Assembly in such case,” &c. The assignment, in these general terms, is sufficient. There is an apparent mistake by attempting too much particularity, for Minnick Miller is not “ the plaintiff therein named,” and this part of the description does not correspond, and it is to be rejected by the beneficent rules of construction above referred to, as enough appears without it. This inconsistency was obviously produced by a confusion of ideas, caused by the fact, that as Minnick Miller was the party beneficially interested, it was difficult to divest the mind of the impression, that he was the plaintiff, instead of John Turner, in whose name the action was brought for his use.

From this view of the case, it is seen that the assignment was sufficient without the amendment, which was allowed in the Court below, and it is unnecessary to consider the several points made in regard to it. There is no error.

Pee Cueiam. Judgment affirmed.