dissenting: There was no controversy as to the facts of this case. A replevin bond, executed by J. H. Spencer as surety and filed in the Eecorder’s Court of Camden County, included a condition for the payment by the defendant" 'of the costs of the action, in the event that it should be adjudged that the plaintiff was the owner and entitled to the possession of the personal property, which is the subject-matter of this action. However, the statute (O. S., 836) under which the action was brought in the Eecorder’s Court specifically provides that “the defendant’s undertaking shall include liability" for costs . . . only where the undertaking is given • in actions instituted in the Superior Court.” Does the fact that a replevin bond including liability for costs filed in the Eecorder’s Court make it a valid bond for costs when the case was heard on appeal in Superior Court? I think not.
*224The statute under wbicb tbis action was brought, C. S., 836, reads as follows: “At any time before the delivery of the property to tbe plaintiff, the defendant may, if he does not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, payable to the plaintiff, executed by one or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, with damages for its deterioration and detention, and the costs, if delivery can be had, and if delivery cannot be had, for the payment to him of such sum as may be recovered against the defendant for the value of the property at the time of the wrongful taking or detention, with interest thereon as damages for such taking and detention, together with the costs of the action. If a return of the property is not so required, within three days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, unless it is claimed by an interpleader.
"The. defendant's undertalcing shall include liability for costs, as provided in this section, only where the undertaking is given in actions to-stituted in the Superior Court/’
The principle is laid down as follows: “Sureties will not be bound in excess of the statutory demand, and when the penalty named is greater than that stipulated in the statute the bond will be held only for the statutory requirement.” Stearns’ Law of Suretyship (3d ed.), 23. It is the rule in North Carolina that the provisions of a statute are presumed to have been written into a bond in suit, and any stipulation incorporated therein at variance with the terms of the statute is void, Horne-Wilson, Inc., v. Surety Co., 202 N. C., 73; Brick Co. v. Gentry, 191 N. C., 636; Electric Co. v. Deposit Co., 191 N. C., 653. See Mfg. Co. v. Blaylock, 192 N. C., 407; Supply Co. v. Plumbing Co., 195 N. C., 629.
The defendant paid the costs in the action in the Recorder’s Court, for which the surety had inadvertently bound himself in the undertaking, and the question as to the validity of the bond of the surety in that court is not now before us. In view of the statute and in the light of our decisions, the bond given in the Recorder’s Court must be construed as having been void as to the inclusion of liability for costs, even in that court and certainly if void in its inception, it cannot subsequently in an action on appeal be held to be valid. The surety was not a party to the action on appeal, having received no notice of same, and the bond for costs cannot be said to have been continued in force for that reason.
1 think the judgment as to the cost's in the Superior Court should be modified.