Thompson v. Lockwood — 15 Johns. 256

Majority

p. 256

Thompson against Lockwood.

Headnote

Where a shenn voluntarily permits a decution to esarre^ordetahí plaintiff In the sues°aoewproh^retal” hS on his surrender, unless the plaintiff mthe someact show-to^oiditim on

fendantthagain on the same execution, and take from him a bond for the gaol liberties, veraiiy withaascitis surety! vo?d for duress^ the defendant0 ast°

One obligee cannot plead that the bond his co-obligee

¡ule toabond tSen fronA defend^ ant whom he has no right to detain incasto* co-obligee ov surety may avail nimself of durS^ina s°IgatLthim.

IN ERROR, to the court of common pleas of the county . 01 Orange*

The defendant in error, who was sheriff of the county of Orange, brought an action in the court below, against the plaintiff in error, as surety in a bond for the gaol liberties.

At the trial, in the September term, 1817, of the court below’ plain tiff below gave in evidence a bond executed to him, as sheriff, by William Lawrence and the defendant he-v low, dated May 27th, 1816, by which they bound themselves, jointly and severally, in the sum of 424 dollars, and 34 cents, with condition that Lawrence being in custody by virtue of two writs of copias ad satisfaciendum, should remain a true and faithful prisoner, and should not escape or go without the limits, &c. The writs of ca. sa, mentioned in the condie 7 tian of the bond, and the departure of Lawrence from the , limits, were admitted on the part of the defendant below,

The counsel for the defendant then offered in evidence, under the notice annexed to his plea, in bar of the action, that previous to the execution of the bond, Lawrence had been twice arrested by Van Duzer, one of the deputies of plaintiff below, by virtue of the two executions before mentioned; that previous to the third arrest and imprisonment of Lawrence, on the day ol the date ol the bond, he had been twice voluntarily discharged, and permitted to escape, by Van Duzer, who had received a compensation for such discharge and permission. The court ruled that the evidence was insufficient to bar the action, and the jury thereupon found a verdict for the plaintiff below. The defend- * . ant tendered a hill of exceptions to the opinion of the court below, which was removed into this court by writ of error.

W. A. Duer, for the plaintiff in error, contended,

that the arrest and discharge from imprisonment amounted to a satisfaction of the debt. Á voluntary discharge by the sheriff was, as it respects him, a payment; and his power to arrest was

p. 257

was at an end. He could not maintain an action against the prisoner, to recover the money. Although a discharge of the defendant, without the authority or consent of the plaintiff, may not bind him, yet even the plaintiff would be obliged to sue out a new'writ, on the ground that the former ca. sa. was a nullity, or had not been returned. It is against all legal reason, that one writ can be twice operative, and produce the same effect. By the first arrest, the writ has been obeyed, and has performed its proper function; and after a voluntary discharge, the sheriff cannot arrest a second time. If he does so, he is liable to an action for false imprisonment. The authorities are explicit and conclusive. (Lansing v. Fleet, 2 Johns. Cas. 3 . Holmes v. Lansing, 3 Johns. Cas. 73 . Palmer v. Hatch, 9 Johns. Rep. 329 . Atkinson v. Matteson, 2 Term Rep. 172. per Grose, J. Atkinson v. Jameson, 5 Term Rep. 25. Barnes, 373. Tillman v. Lansing, 4 Johns. Rep. 45 . per Thompson, J. Clarke v. Clement, 6 Term Rep. 525. Tanner v. Hague, 7 Term Rep. 420. Vigers v. Aldrich, 4 Burr. 2482. Jacques v. Withy, 1 Term Rep. 557. Wheeler v. Bailey, 13 Johns. Rep. 366 . Yates v. Van Rensselaer, 5 Johns. Rep. 364 . Barnes, 205. Blackburn v. Stupart, 2 East, 243.)

If, then, the sheriff, after a voluntary escape, cannot make a second arrest, there is an end to the question. The bond is void. The sheriff cannot, colore officii, take a bond for security for a debt, for which he has already received satisfaction. He cannot in this suit obtain, indirectly, what the law would not allow him to recover directly from the prisoner. As the sheriff roust, as preliminary proof to his action, produce the writ under which he acted, the defendant below may show, by way of defence, that the debt was satisfied, and the sheriff fraudulently exacted the bond.

Betts, contra.

The sheriff had the assent of the defendant in the execution to the arrest. He was a party to the bond given for the liberties, and having executed it, with a knowledge of his rights, he must be bound by it. (Ackly v. Hoskins, 14 Johns. Rep. 374 . 376.) The bond is taken for

delivered the opinion of the court. This is a writ of error to the common pleas of Orange county. The defendant here, who was plaintiff below, sued on a joint and several bond, entered into by the plaintiff in error and William Lawrence, to the defendant, as sheriff of the county of Orange, conditioned that Lawrence would remain a true and faithful prisoner on two writs of ca. sa. issued out of the common pleas of Orange, and not escape or go without the limits of the gaol liberties of that county.

We are to intend from the hill of exceptions that the plaintiff below proved every thing necessary to entitle him to recover; the bill of exceptions having been tendered to the opinion of the court in overruling the defence set up at the trial.

Under a notice to the plea, it was offered to be proved, that Lawrence had been twice arrested by a deputy of the sheriff, on the same executions, and had been twice voluntarily discharged and permitted to escape by such deputy, t® whom compensation had been made for such permissions to escape before the arrest on the same process, and under which the bond was given ; this evidence being objected to was" overruled.

The principle now insisted on is, that it w'as not competent to the sheriff to re-imprison Lawrence, after his deputy

p. 259

had permitted him to escape; and that the bond exacted from Lawrence on the third arrest, after his voluntary escape, was taken illegally, and is void.

The case does not show any act of the plaintiff in the ex-eculions affirming the arrest of Lawrence under them 5 it cannot then be distinguished from the case of Lansing v. Fleet, ( 2 Johns. Cas. 2 .) That ca$e was well considered and very ably discussed, and it settles the point, that after a voluntary escape, the sheriff cannot lawfully retake or detain a prisoner, unless the plaintiff in the execution shall issue a new process ; nor can he detain on the surrender of the prisoner himself, unless the plaintiff in the execution does some act showing his election to hold him on the old process. It is useless to review the cases cited in that case, as they are extremely well examined.

The next point is, whether if the bond is void as to Laurence on account of duress, Thompson can set up that defcnce. It is clearly settled, that where a person is illegally restrained of his liberty, and, whilst under such restraint, enters into any obligation to the person causing the restraint, it is avoidable for duress of imprisonment. (Co. Litt. 253. Jenk. 166. 2 Inst. 482.)

But it is answered that this bond being joint and several, and Thompson being a surety, he cannot avoid the bond for duress as to Lawrence, and the case of Huscombe v. Standing, (Cro. Jac. 187.) has been referred to in support of the position. As a general principle it cannot be controverted, that if a bond be obtained from A. and B. by duress against A., B. cannot plead the duress against A. to invalidate the bond as against him. This, however, is applicable to cases depending on common law principles, and where there is no statutory provision interposed. Sheriffs can take no bond or other security, in matters relating to the execution of their offices, but only to themselves, and by the name of their office, with such conditions as the law prescribes j and any obligation taken by a sheriff in other form, by co-lour of his office, is declared void. (1 N. R. L. 423, 424.) And the act relative to gaol liberties, (1 N. R. L. 427.) making it the duty of sheriffs to let prisoners, on civil process,

p. 260

go at large within the limits of the liberties, on giving secu>rity, is a mere modification and extension of the former act. Perhaps, as the bond here taken was in'the terms prescribed by the act, it cannot be said to be void, as being taken colore officii. But the taking the bond was unlawful, and the condition itself Was void. Lawrence could not remain h true and aithful prisoner upon executions on which the sheriff had no right or power to detain him. The bond had no more validity than if the sheriff had taken it without any execution in his hands against Lawrence; a condition that a man shall not plough his land, or go out of his house, being in restraint of a common right, is void. (Bac. Abr. Oblig. (E. 3.)) Conditions in restraint of trade have been adjudged, repeatedly, to be void ; and among other reasons, as against the public good, by depriving the party of his means of livelihood. (Bacon, tit. Bond. (K.))

Judgment reversed.

Cases cited

Lansing v. Fleet 2 Johns. Cas. 3 N.Y. Sup. Ct. p. 257