Majority
p. 233Sullivan, Assignee, &c. against Alexander and others.
Headnote
Wherein In® condition of a bond taken by the sheriff.onsuioner in ext— at large within the limits the liberties of the goal, the sheriff added to the condition authorised hytdafule, \er should, at the request of the sheriff, again surrender himself to iltprtton, &e. the bone! « held [d, £is taken, cobre ojficiij in terme not authorised by the ytutttt*.THIS was an action of debt brought by the plaintiff, as as- . • mee of a bond taken by the sheriff of the city and county of p v 'eu>-York, on permitting Mexanaer, a prisoner, mexecution, the suit of the plaintiff, to go at large within the liberties of te gaol, pursuant to the statute. The conditioñ of the bond,
p. 234The grounds, taken in support of the demurrer, were,. That the condition of the bond was not conformable to the.d rections of the statute, but contained a further stipulation, th the prisoner admitted to the limits of the gaol liberties, shou! at the request of the sheriff, surrender himself again to the pr son. 2. That if the bond was not, on that ground, void, as n spected the sheriff, yet this bond was not assignable, so that tb plaintiff could bring a suit in bis own name, as the statute on! authorized a bond taken in the very form prescribed, to be a: signed.
as set forth in the declaration, was; “ that if the said Alexanc . should remain a true and faithful prisoner, and should not, any time, or in any wise, escape, or go without the limits of tl liberties of the gaol of the said city and county of JVew-Yon until discharged by due course of law; and should, at the requ< of the said James J, Bell, as sheriff aforesaid, surrender himsi to the said prison, then the above obligation to be void.’’ Tl declaration alleged that Alexander escaped, and went beyoi the limits of the gaol liberties, Sic, whereby the said bond b came forfeited, See.
The defendants, after craving oyer of the bond and conditio pleaded, 1. Non est factiim. 2. That ‘the bond was not assigi ed by the sheriff to the plaintiff. 3. That Alexander did n escape, &c. 4. A return again within the limits of the gaol li erties, after the alleged escape, before suit brought. 5. Th Alexander, after the alleged escape* and after the commenc toent of this suit, Was duly discharged Under the act for givii relief in cases of insolvency, passed the 12th April, 1813. A general demurrer to the declaration, to which there was joinder by the plaintiff.
Slosson, T. A. Emmet, and Wells, in support of the demu rer.[1]
P. A. Jay and D- B. Ogden, contra.
delivered the opinion of the Court. Tí question is, whether the bond is void, as taken for matters n< authorised by statute, colore officii? The words which have bee superadded to the condition, as authorised by statute, are, tin the defendant A. “shall, at the request of the said J.L.B as sheriff aforesaid, surrender himself to the said prison,!’ &x
p. 235
This is a substantial and material part of the condition. In Thompson v. Lockwvod, ( 15 Johns. Rep. 256 .) we held, that the t relative to gaols, sess. 36. ch. 49. s. 6. (1 N. R. L. 429.) to letting prisoners go at large within the limits of the liber is, was a mere modification and extension of the act concerning sheriffs, &c. (1 N. R. L. 418. 423. sess. 36. ch. 67. s. 13.) which renders void any obligation taken by the sheriff, by colir of his office, in any other form than is prescribed by the amte Beawfage's case, (10 Co. 100.) Kidwelly v. Brand, Plowd. 60. 68.) and Rogers v. Reeves, (1 Term Rep. 418.) are some of the many cases which show that such a bond is void, mere verbal difference or departure from the provisions of ic statute, will not render a bond to the sheriff void; but when tere is a substantial variance, as if the sheriff adds to the cognition that he shall be kept without damage against the king id the plaintiff, that will make the whole condition void. The leriff, in this case, had no right to require the defendant, Alzander, to surrender himself to prison, at his request. He has right to reimprison a defendant who has been admitted to the berties of the gaol, in one case only ; that is, when the sure-es taken for the prisoner are insufficientblit the condition to iis bond does not embrace that case. We are of opinion, herefore, that the defendants are entitled to judgment.
Judgment for the defendants,