The opinion of the court was delivered by
Kennedy J.The only question presented for consideration by the error assigned in this case- is, whether the bond declared on recites the action, in which it was intended to be taken, with sufficient accuracy, or whether there is any material variance between the action mentioned in it, and the record of the one received in evidence on the trial. In the case of a bail bond taken under the Statute of 23 Hen. 6, c. 9, it has been held good, notwithstanding there may be some trifling informality, or variance of the condition, pom the writ, in the description of the plea, or of the time, or place of appearance. For instance, where the writ was, to answer the plaintiff in a plea of debt for three hundred and twenty pounds, or in a plea of trespass with an ac etiam, and the con*45dition was to answer the plaintiff in a plea of debt or trespass generally, or without mentioning the plea at all, the variances have been held to be immaterial, for the statute only requires a bond conditioned for the defendant’s appearance, and the description of the plea is merely surplusage. See Cro. Jac. 286; 2 Lev. 123; 2 Show. 51; T. Jones 137, 138; 6 Mad. 122; 10 Mad. 327; 6 Durnford and East, 702; 2 Lev. 180; T. Jones 46; 2 Vent. 237, 238; 2 Strange 104, 105, 106; 9 East 55. A substantial compliance, therefore, with the English statute, in taking the bond, would seem to be all that has ever been required. There is certainly, no good reason why a different rule should bo applied to the taking of bail bonds under our act of assembly of the 13th of June, 1836, sect. 10; Stroud’s Purd. 41. It requires that the bond shall be taken in the name of the commonwealth, and in the amount of the bail demanded; and that the condition thereof shall be, that if the defendant therein named, shall be condemned in the action at the suit of the plaintiff, he shall satisfy the condemnation money and costs, or surrender himself into the custody of the sheriff of the county, or in default thereof, that the bail will do it for him. In order to meet the requisitions of the act then, it is not necessary that the writ should be recited. A reference to the action and such a description of it as will render' the application of the bond to it certain is all that is required. Now in the present case, there is such a degree of correspondence between the action as described in the condition of the bond in suit, and that of which the record was given in-evidence, as brings the mind, upon comparing them, irresistibly to the conclusion that they are identical. The court in which the action was brought, the term of the court to which it was brought, the name of the plaintiff therein, as also that of the defendant, together with the plea and cause of action, are all specifically mentioned in the condition of the bond, in exact correspondence with the records thereof as given in evidence. But it is objected that another person is named in the original writ, as a co-defendant with the one mentioned in the condition of the bond, who is omitted therein, and therefore the action referred to in the' condition of the bond cannot be the same with that of which the record was given in evidence. I do not know that it would be right to hold such an omission a material and fatal variance under' any circumstances; unless a real uncertainty as to the action was-produced by it, because I doubt whether this court ought to determine, when the effect of it would be to set the bond aside, that the omission of the sheriff, in taking a bail bond, to insert in the condition thereof the names of all the defendants in the action, wherein the bond is intended to be taken is such a variance as to render the bond a nullity. The great object in such case is to designate, the action with a reasonable certainty, so as to leave no room for doubt in regard to its identity; and hence, if the description of the action, as contained in the condition of the bond, be sufficient to *46answer this purpose, without naming each of the defendants therein, there would seem to be no good reason for holding the bond void, merely on that account. But in this instance, as the .other person named as a co-defendant in the writ, could not be found and taken by the sheriff, the one taken and named in the condition of the bond, may with strict propriety be regarded as the only defendant to the action in which .the bond was taken; because the plaintiff could have no judgment except against him .alone., .and no proceeding or judgment could be had and obtained in that action which would affect or conclude the other. The act of assembly, under which the bond in question was taken, does not require a recital or mention of the writ: a reference to the aclion is sufficient. We, .therefore, tlduk the bond good and well taken.
Judgment affirmed.