This was a scire facias, upon a recognizance, taken by the sheriff, in the sum of two hundred dollars, conditioned for the appearance of one Fittsher, at the next term of the Circuit Court, to answer to an indictment preferred against him for the crime of larceny. The scire facias shows that the judgment of forfeiture, for one hundred dollars, was entered against the cogriizors, and it commands them to show cause why execution should not be issued against them for that amount.
The plaintiff in error appeared, by his attorney, and filed a plea, showing that the Circuit Court, to whom the indictment was preferred, had ordered Fittsher to be held to bail in the sum of one hundred dollars, and that, in pursuance of that order, the clerk had indorsed on the back of the capias, on which he was arrested, the sum of one hundred dollai’s, as the amount of bail required. That he was arrested on that warrant, and required by the sheriff to give bail in the sum of two hundred dollars, and that, accordingly, to procure his release, he had given the recognizance, in the scire facias mentioned, for the sum of two hundred dollars.
To this plea a demurrer was sustained by the Circuit Court, which thereupon rendered final judgment, and awarded execution. for the sum of one hundred dollars. In this the court most clearly erred. The sheriff was ordered to take bail in the sum of one hundred dollars, and this was his only authority for taking bail in any amount. This was no more authority for him to require bail in the sum of two hundred dollars, than it was to require him to leave his right hand in pledge for his appearance at court. The sheriff was bound to pursue his authority strictly, and when he departed from it he acted without authority, and the recognizance was as void as if he had no authority whatever to require bail. It is no answer to say that the court only rendered a judgment against him for one hundred dollars, for which the sheriff was authorized to take bail. There is nothing in this record, except the plea, showing that the recognizance was taken in too large a sum; and, after the demurrer was sustained, the court could not rightfully act upon its statements. It was either a good plea or a bad one. If good, then the demurrer should have been overruled, and if bad, the court had no right to reduce the amount of the judgment on the strength of its statements. But there is, in this case, a principle of higher moment. If the sheriff may require the prisoner to give bail in a greater amount than is required by the order of the court, to the extent of one hundred dollars, he may, with the same propriety, require ten thousand, and thus exercise the most intolerable oppression; and, in fact, deprive the party altogether of the right to give bail. It is no satisfactory answer to say that the court may treat the recognizance as if taken for the true amount authorized, for the greater mischief is, in requiring the excessive bail, by which the party may be demanded to give higher bail than he is able to do, and thus compel him to continue in prison, when he might have secured his discharge by giving the bail required by law. It is not, and cannot be, denied that the plea showed the recognizance was void as to a part; and if as to a part, then it was void as to the whole. There is no authority for thus reducing the amount for the purpose of giving it vitality. The plea was good, and the judgment must be reversed.
Judgment reversed.