It is manifest that the conditions of the bond sued on are not in conformity with those expressly required by the statute under which the bond was taken; but is such non-conformity sufficient to invalidate the bond ? In the cane of Janes et al. v. Reynolds, administrator, (2 Tex. R., 255,) this court acknowledged that the general rule on the subject of statutory bonds is, “ that when directed to be made in a particular mode, that mode must be pursued;” but we say that “this rule is subject to modifications, and it is laid “ down that to render a bond void for want of conformity to a statute it must “be made so by express enactment, or must be intended as a fraud on the “obligors, by color of law, by an evasion of tlie statute.” (Treasurers v. Bates, 2 Bail. R., 376; United States v. Tingey, 5 Pet. R., 129; United States v. Bradley, 10 Id., 343; United Slates v. Lynn, 15 Id., 290; Speake et al. v. United States, 9 Cr. R., 28.) There is no provision in the statute making the bond void for non-conformity to the mode prescribed ; and if it- is void as a statutory bond, it is so on the ground of some other vice in it.
it is laid down iii the decision of this court in the case we have just cited, if not in express terms by implication at least, that if the covenants contained in the bond are more onerous than those imposed by the statute, such departure from the statute would invalidate tlie bond. The condition of the bond in this caséis “that they shall well and truly perform and discharge all the duties required of them as ferrymen,” language sufficiently comprehensive to embrace not only all the conditions expressly enumerated and required by the statute direct ing the bond to be taken, but also all other duties required by law from the licensed ferryman. And if there are other duties required by law it would result that the bond is more onerous to the.obligors than those imposed by the law under which it was taken. It will be found that the last sentence of the 15th section of t lie same, act gives to any person who may be detained at a public ferry, by the neglect of the ferryman performing his duty, the right to recover by a warrant from a justice of the peace ten dollars for such delay. The 16th section imposes a penalty for exacting- more toll than is allowed by law. These are duties not imposed by the conditions of tlie statutory bond, but would be embraced in the conditions of the bond sued on.
Again, the 5th section of tlie act to amend an act organizing justices’ courts, and defining the powers and jurisdiction of the same, January 19th, 1S40, (Dig., art. 1391,) enacts “That the County Courts throughout tlie Bepublic shall “require the owner or owners of tlie ferries- established in their respective “counties to give bond with good and sufficient security in the sum of one “thousand dollars, payable to the judge of tlie County Court of the county “where such ferry is established, and to his successors in office; conditioned, “that the person or persons giving- such bond shall keep the banks on either “ side of the water-course in good repair, and that the slope or amount of rise “from the water’s edge of such bank shall not exceed two feet for each rod.
“ And if any ferryman or owner of any ferry shall not comply with the *4“conditions above mentioned lie shall forfeit and pay to the county treasurer “of the county ten dollars a day for each day lie shall neglect to keep the said “hanks in repair, said money to be applied to the use of the conuty.”
This court, in the opinion delivered at the last term, we respectfully submit, erred in holding the bond to he void and directing the suit to be dismissed. Whether viewed as a common-law or statutory bond the plaintiff had the right to recover. (Grimes v. Butler, 1 Bibb R., 102; Bartlett & Co. v. The Governor, for the use of Prather, 2 Bibb R., (58(1 and G41; Colley v. Morgan, 5 Ga. R., 178; Justices Inferior Court v. Ennis, 5 Ga. It., 5G0; Governor Crawford, for the use of Ward, v. Stephens et al., 1 Kelly It., 574; and the same case, 3 Kelly R., 499; Hall v. Cushing, 9 Pick. R., 395; Morse v. Hudson, 5 Mass. R., 314; Commonwealth v. Hatch, 5 Mass. R., 191; United States v. Bradley, 10 Pet. R., 343; Miner v. Mechanics’ Bank, 1 Pet. It., G9; United States v. Tiugey, 5 Pet. It., 115; Acker ». Burrell, 21 Wend. It., G05; State New York v. City of Buffalo, 2 Hill, 434; Allegany Supervisors v. Van Campon, 3 Wend. R., 4S; Triplett v. Gray, 7 Yerg. R., 13; Spear v. Ditts, 8 Verm. R., 419; United States v. Morris, 2 Brock. It., 96; Stevens v. Treasurers, 2 MeC. R., 107; Branch v. Commonwealth, 2 Call. R., 670; Johnson v. Gwathmoy, 2 Bibb. It., ISO; Treasurer v. Bates, 2 Bail. R., 302 ; Janes el al. v. Reynolds, 2 Tex. It., 250.) These authorities have been cited to the single point decided by the court. The cases cited in Janes v. Reynolds, (2 Tex. R., 250,) completely exhaust the subject and show the true rule and its reasons.The conditions of the bond sued on would render the obligors bound for the fonnancc of the duty here imposed on the ferryman, whether any damage uau been sustained or not, if the duty had not been, performed. The object of the two statutory bonds required to he given by ferrymen or owners of ferries was obviously distinct; the first, was intended as a security for those who should sustain damage from the breach of its conditions; and if no damages had been sustained there could bo no ground for an action. The second was to secure the penalty for the non-performance of it duty imposed, without regard to the question whether damages had been sustained or not; and yet the"bond sued on is so framed that it could with as much propriety, and perhaps more, claim to he taken under the last as under the first. A literal conformity to the statute in a statutory bond in general would not he required; hut where its conditions are specially and particularly set out, as they are in the statute under which the bond sued on was made, the bond should substantially embrace eaeli of those conditions. The conditions expressed in the statute' have been so entirely disregarded in the bond sued on that we believe it could not be the ground of an action under the statute, and that the judgment must be reversed and cause dismissed.
It may be proper to remark that the law under which this suit was brought and the provisions of other statutes cited have all been repealed or suspended by the act of 23d of January, 1850. (Dig., art. 1413.)