REHEARING.
Dipscomb, J.After the opinion of the court in this case had been delivered at the last term, on the petition of the appellee’s counsel a rehearing was granted, and an argument has been heard at this term. The counsel for the appellee has endeavored with much ability to establish two positions: 1st, that the bond sued on is a good statutory bond; 2d, that if not good as a statutory bond, yet it is a good and valid bond at common law, sufficient to sustain the judgment of court below.
We have endeavored to bestow due consideration on his arguments and the very respectable authorities referred to by him. On the first position assumed we will, in addition to what is said in our opinion in support of the coa-*5elusion tW the bond is not a good bond under the statute, further say that, although i“ is admitted that where the statute specially sets forth certain things or eoudiiious to be done and performed, and the bond sets out those conditions substantially in the terms of the statute, but proceeds to set out other conditions to be performed, that the bond will be good under the statute because it has specified all that the statute required, and as to the others not required, they may be considered as surplusage, and the bond inoperative as to them; yet that, it is not so where none of the conditions set out in the statute are contained in the bond, and the only condition set out is collectively “to perform and “ discharge all the duties required of them as ferrymen,” and other duties being required by law, for which another bond is required to be given. We are not. furnished with any certain data to enable us to say what duties were intended to be secured to be performed by the bond on which this suit has been brought, but if is insisted that if the bond sued on is not a good bond under the statute it is valid as a voluntary bond at common law. And it is admitted that this position seems to be supported by the authority of some adjudicated cases of great respectability. The case most relied on by the counsel for the appellee and pre-sed with great force is Stephens et al. v. Crawford, Governor, 3 Kelly. 499. Stephens had been elected sheriff, and had within the time required by law after his election given bond, ami was in office under his election, and after the expiration of the time allowed by law to the sheriff elect to give bond, on some suggestion of the insufficiency of the bond he had given he voluntarily gave another bond. The court ruled that this last bond was not good under the statute, but that it was valid and binding upon him and his securities as a voluntary bond at common law. And it was further decided in the smile ease tlmt, as a common-law bond it could invoke the. aid of the statute, the provisions of which it had so far disregarded as to be held not a statutory bond, to give it force and effect.
To this last proposition, notwithstanding the great and sincere respect we entertain for the court so ruling, we are unable to yield one assent. We believe that, if a bond, intended tolie taken by the authority of a statute, cannot he sudained as a statutory bond, it caunot be valid as a common-law voluntary bond unless it Will stand as such without the aid of the statute by which it lias been repudiated. There is a class of bonds that may well be, sustained, from their form and structure, without the aid of any statute : injunction bonds, hail bonds, replevy bonds, forthcoming bonds, appeal and writ of emu- bonds, and all such as are made payable to the beneficiary or the interested party, unless taken raider coercion and oppression, or by fraudulent imposition on the party; they would be valid at common law without resorting to the statute to give them effect as such.
Again, we are. not prepared to say that the bond sued upon in this case, is a voluntary bond, because, independently of all statutory enactments, the appellants were under no moral obligation to give a bond before they could exercise the privilege of keeping a ferry boat upon their own lands and demanding a compensation from those who received their services. But by our statutes this natural right lias been abridged, and it lias been made a franchise to be exercised on giving bond and obtaining a license for its enjoyment. The statute should therefore require a more strict observance. Now, it will be seen that in most of the cases cited by the appellee’s counsel the suit was ou an official bond, as was the case in 3 Kelly, and it cannot be contended that to require an official bond from an officer on entering upon tlic discharge of official duties is any abridgement or restraint upon liis rights; yet the eminent judge wiio delivered tlie opinion in the case referred to, to support the conclusion that the second bond was a voluntary boud, seems to place much stress ou the fact that Stephens was already in the office of sheriff when that second bond was given by him. Had the appellants been already in the enjoyment of the franchise under a license when they gave the bond it would have been analogous *6in many respects to the case of the sheriff Stephens, hut they were not, and were required to give the bond before they could exercise a right that unquestionably belonged to them if there had been no statute in relation to ferries.
In the case of the Commissioners of the Poor for Lawrence District v. Gains et al., 1 vol. South Carolina Rep., 459, which was a suit on a bastardy bond, Judge Bolt, who gave the opinion of the court, says that the bond is not valid as a statutory bond; that where an act of the assembly requires a tiling io be done in a particular way, that way and that alone must be pursued; that every feature of the act is so distorted by this bond that one would hardly suppose it had any relation to it; and he proceeds, “ I do not think it a good bond at “common law; if it had been voluntarily entered into, for the purpose of sup- “ porting this child, I should consider it a duty which the obligor was under a “ natural and moral obligation to perform, and therefore a debt which he was “legally bound (o pay; but it appears on the face of it that he was taken by “virtue of a warrant from a magistrate, and compelled, under color of legal “authority, to enter into a bond for purposes which he was neither naturally “nor morally bound to perform.” Independently of the statute as before said, the appellants were neither legally nor morally bound to give the bond as a prerequisite to the exercise of the right to keep a ferry, and as they wore required to give the bond before exercising’ it, the giving’ it cannot well be called a voluntary act.
Unless we felt very clear that the bond was valid as a voluntary common-law bond, sound policy would forbid our sustaining’ it as such. Airy latitude allowed to officers whose duty it is to take bonds, in departing from the terms required by the statute in the structure and framing the bond, will be an encouragement to a further disregard and inattention to its requisitions, and it must bo productive of an evasion of tlie statute altogether, because it seems to be well settled that if a bond is sued upon as a common-law bond, there can be hut one recovery on it, (see case 3 Kelly, before cited;) hence a bond might so far depart from the-statute as not to be sustainable as a statutory bond, and this through design; and when sued upon as a common-law bond — say that it was a sheriff’s bond — the sheriff might invoke a recovery against him for a few dollars, which would prevent,|iiiy other suit being sustained on it — a bond that the statute contemplated should he a security against delinquencies to the amount of twenty or even one hundred thousand dollar» would he discharged by a judgment on it, as a common-law bond, for a mere nominal amount.
Believing that the bond sued on was neither void tinder the statute nor at common law, we adhere to the opinion that the judgment must he reversed and tlie cause dismissed. The only legal remedy that the appellee had was a suit at common law against the appellants as common carriers, if he had suffered by the negligence of themselves, their servant, or agents.
Reversed and dismissed.
Wheelee, J., gave no opinion in this case.