Love v. Palmer — 7 Johns. 159

Majority

p. 159

Love against Palmer and Others.

NEW-YORK.

Nov. 1810.

Headnote

Where an un~ der-sherifi' took a bond tO indesn. nify him for all costs and damages, &c. for nOt taking X P. against whom the said sheriff held a Ca. Ca. at the suit of L.to prison, as Security for the debt; the bond `.vas held to be void, as taken by the sherift for ease and favour, or by colour of his office, and in other form than that pieserifses~ by statutes

THIS was an action of debt. The plaintiff declared ~an a bond, dated the 7th of August, 1809, in the penalty of 200 dollars, conthtioned to indemnify the plaintiff against all costs and damages, that shall or may arise against him, on account of his not taking N. Palmer to prison, on account and by- virtue of a Ca. sa. which the plaintiff had in his hands, issued out of the supreme court, in favour of Reuben Leonard and Rufus Leonard; and the defendants bound themselves to pay the debt and costs, for which the Ca. .ra. was issued, viz. ~94 dollars and 43 cents to R. & R. Leonard, and to indemnify the plaintiff against all costs and damages which may or shall arise from the premises. The plaintiff assigned for breach, that the defendants had not indemnified hin~ against the costs and damages that had accrued in consequence of his not committing the said N. P. to prison, upon the Ca. sa. aforesaid, nor had paid the said debt and costs, to the said R. & .1?. Leonard, besides the fees and poundage, for serving the Ca. sa. amounting to 10 dollars, nor brought to the plaintiff a discharge from the said R. & R. Leonard. The plaintiff then averi~ed, that the ca. sa. was issued out of the supreme court, in August term, in 1809, reti~rnable in November term fol~ lowing, for the sum aforesaid, in favour of the said R. & R. Leonard, and that the same was in the hands of the plaintiff, as under-sher~f to the sheriff of Mathson county;, and that, by means of his not taking the said N. Palmer

p. 160

to prison, whom he had arrested by the ca. sa.; and in consecluence of permitting him to escape, the sheriff had been sued for the escape, before this suit was brought, whereby the plaintiff has been damnified, and been ■ obliged to expend 50 dollars, in defence of the said suit, and became liable to pay the said sum to the sheriff, &c.

There was a general demurrer to this declaration, and joinder, which was submitted to the court, without argument.

It is apparent that the bond, in this case, was tabtn as an indemnity for an escape, then in contemplation, and not for an' escape which had previously happened. The plaintiff had the prisoner, and the ca. sa. in his possession when he took the bond, and it was given for the deliverance of the prisoner from custody. It was accordingly void in law, for the party was not bailable. The case of Dive v. Manningham, (Plowden, 60.) is an early and solemn determination upon the point. That was an action of debt, upon a bond of indemnity, given to the plaintiff, as sheriff, for the delivery out of prison of a prisoner, whom the sheriff had taken in execution for a debt; and on demurrer, the bond was held to be void, both by the common law, and under the statute of 23 Hen. VI. c. 9. which we have adopted, (sess. 24. c. 28. s. 13.) as being taken for ease and favour, or by colour of his office, in other form than that prescribed by the statute. The same doctrine is recognised in r • merous subsequent cases, and is not now to be q- ¿stioned. (10 Co. 99. Cro. Eliz. 66. 199. Yelv. 19'. . 2 Bulst. 213. 2 Johns. Cas. 245 .) Judgment must, therefore, be given for the defendants.

Judgment for the defendants.