The court having come to a determination that the recognizance in question is void, for a reason that will be stated hereafter, I shall therefore transiently pass over the other objections in the case.
The statute (p. 407.) requires, that the party assaulting shall recognize with surety, to answer to the complaint for secret assault, and pay all such damages as shall be awarded against him. The bond now in question obliges the party to answer to the complaint, and abide the order of the court thereon. Construing this contract in reference to the law and the subject matter, it requires an abiding of the order of the court in relation to the damages, and is substantially the same, as if it was taken in the words of the statute.
To the objection mad -, that the bond was not called, the appearance of the defendant Billings and pleading, which the record shows, is a sufficient answer. The object of calling the bond, is to enforce an appearance ; and when the party voluntarily appeared, and was permitted to plead, without objection, the calling of him was quite unnecessary.
By the appearance, however, the condition of the bond was *239not discharged. The recognizance stipulates not only for an appearance, but for abiding the judgment; and the former is no extinguishment of the latter. Thus far no legal objection is perceived.
But the taking of a recognizance that Billings should keep the peace and be of good behaviour, unquestionably, was an error, and the stipulation is a nullity. On a different process, such bond might have been taken, but not in the case before the court.
The bond of recognizance being in part legal, and in part unauthorized, what is the consequence ? It is altogether invalid. A bond void in part, by being against the positive provisions of a statute, is void in toto. Norton v. Simmes, Hob. 12. 14. Maleverer v. Redshaw, 1 Mod. 35. Collins v. Blantern, 2 Wils. 347. 351. Hyslop v. Clarke & al. 14 Johns. Rep. 458. Austin & al. v. Bell, 20 Johns. Rep 442. Even at common law, it is the better opinion, that such contract is utterly void Fermor’s case, 3 Co 78. Wimbish v. Tailbois, 1 Plowd. 54. At the same time, it must be admitted, that on this point the authorities do not harmonize. But in respect of a bond taken against the provisions of a statute, there is no diversity of opinion.
Now, in the case before us, the statute directs what bond shall be taken, and implies a prohibition of every other species of recognizance It is no unreasonable principle, but one often recognized, that if persons will mix in a contract good and evil together, or right and wrong, courts will not make a separation, but will consider the whole as incurably tainted.
The other Judges were of the same opinion.Judgment to be reversed.