Dole v. Bull — 2 Johns. Cas. 239

Majority

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*Dole, Sheriff, against Bull and Porter.

Headnote

If a bond be taken by the sheriff for the ease and convenience of the pris-

. oner, so that he may go at large within the walls of the prison, and conditioned that he shall remain a true and faithful prisoner, it is not a bond for ease and favor, nor void, though not taken- in the manner directed by the act relative to jail liberties.

A bond taken by the sheriff, that a person in execution shall remain a true and faithful prisoner, is valid.

A bond taken by the sheriff to induce a less vigorous imprisonment is good, if , the indulgence be such as he would otherwise, consistently with his- duty, be authorized to grant; but, if it confer a privilege inconsistent with his duty by which the object of the imprisonment, as a means to compel a satisfaction of the plaintiff's demand, may be impaired or defeated, the bond is illegal and void. (Per Radcliff, J.)

• This was an action of debt, on a bond for 900 dollars, dated 17th May, 1798, given to the plaintiff, as sheriff of the county of Rensselaer. The declaration was in the usual form. The defendants pleaded, 1. Non est factum; 2. Craving oyer of the bond, the condition of which was as follows : “ that if the above bounden Isaac Bull, now confined in the jail or prison of the county of Rensselaer, in the custody of the sheriff aforesaid, at the suit of Edward Rawson, for the sum of 458 dollars and 2 cents, shall be and remain a true. and faithful prisoner in the jail or prison aforesaid, until he shall from thence be discharged by due course of law, then this obligation to be void, otherwise to remain,” &c.

Which being-read and heard, the said defendants say, that

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the said James his said action thereof against them ought not to have or maintain, because they say, that in and by a certain act of the legislature of the state of New York, entitled “an act regulating the liberties of jails,” passed the 5th day of April, 1798, it is, among other things, enacted, in the. words following, to wit: “ That the several sheriffs of the respective counties shall permit any prisoner, who shall be in their custody on civil process only, to go at large within the limits of the respective liberties as aforesaid appointed ; provided such prisoner shall procure and offer to such sheriffs respectively, a bond with one,or more sufficient sureties, in the penalty of double the amount of the sum for which such prisoner is confined, conditioned that such prisoner shall remain a true and faithful prisoner, and shall not, at any time, or in any wise, escape or go without the limits of said respective liberties, until discharged by due course of law,” as by reference'to the said in part recited act, among other .things, will fully and at large #appear. And the said defendants aver, that the said bond or writing obligatory was taken by the said James Dole, then being sheriff, by virtue of the said recited act, to wit, at the city of Albany, in the county of Albany ; and that the said sum of 458 dollars and 2 cents, mentioned in the condition of the said writing obligatory, was the true shm for which the said Isaac Bull was confined in the custody of the said sheriff, and that the penalty of the said bond or writing obligatory is not of double the amount of the said sum for which the said Isaac was then confined, as by the said act is required, and is, therefore, void, and of no effect, and this they are ready to verify; wherefore they pray judgment if the said J'ames his said action thereof against them ought to have or maintain, &c. 3. And for further plea in this behalf, according to the statute in such case made and provided, and by leave of the court for that purpose, also first had and obtained, the said defendants say, that the said James his said action thereof against them ought not to have or maintain, because they say, that the said bond.or writing obligatory was taken by the said James Dole then being sheriff, by vir

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tue and in pursuance of the directions of the said in part recited act, to wit, at the city of Albany, in the county of Albany; and the said defendants further say, that the said writing obligatory is not conditioned, that the said Isaac Bull should not, at any time, or in any wise, escape or go without the limits of the liberties of the said jail, until discharged by due course of law, as in and by the said in part recited act is directed and required, to wit, at the city, in the county aforesaid, and this the said defendants are ready to verify; wherefore they pray judgment if the said James his said action thereof against them ought to have or maintain, &c. 4. And for further plea in this behalf, according to the statute in such case made and provided, and by leave of the court for that purpose first had and obtained, the said defendant *say, that the said Isaac, on the 17th day of May, 1798, at Troy, to wit, at the city and in the county of Albany, then being in the custody of the said .James Dole, sheriff of the county of Rensselaer, at the suit of the said Edward Rawson, for the said sum of 458 dollars and 2 cents, he the said James then being sheriff as aforesaid, afterwards, to wit, on the day and in the year last aforesaid, at the place in the county aforesaid, voluntarily suffered and permitted the said Isaac Bull to escape from the said jail or prison, the said Isaac Bull not having, at any time before or since the said escape, procured or offered to the said sheriff a bond with one or more sureties, in the penalty of double the amount of the said sum of' 458 dollars and 2 cents, conditioned as in and by the said in part cited act is directed and required, and this the said defendants are ready to verify ; wherefore they pray judgment whether the said James Dole, his said action thereof against them ought to have or maintain, &c.

The plaintiff replied to the second plea, that Bull was in custody on the ca. sa. at the suit of Rawson, for 458 dollars and 2 cents ; that after being arrested thereon, the defendants, on the 17th May, 1798, applied to the said James Dole, then being sheriff of the county aforesaid, and then and there requested and solicited of him that the said Isaac Bull might,

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for his ease and convenience, be indulged with the liberty of ■going at large within the walls of the jail or prison aforesaid, and not to continue and remain any longer locked up and confined within any particular part of the jail or prison aforesaid. And they the said Isaac and John, then and there, in consideration that the said James Dole, then being sheriff as aforesaid, would grant and comply with their request aforesaid, in that respect made, offered to execute and deliver to the said James Dole, then being sheriff as aforesaid, the writing obligatory aforesaid, for the purpose of indemnifying the said James for all ^damages which he might in any way be put to or sustain, by means of the said Isaac Bull’s escaping from and going at large without the walls of the said prison, in consequence of the said James Dole’s granting and complying with the aforesaid request of the said Isaac and John, made, as aforesaid, for the particular ease, convenience and benefit of the said Isaac Bull; (the penalty whereof then to be forfeited to the said James, then being sheriff as aforesaid, whenever the condition of the said writing obligatory should be broken;) and the said James, being sheriff as aforesaid, afterwards, to wit, on the same 17th day of May, in the said year of our Lord 1798, at the town and in the county aforesaid, the said Isaac so being arrested and detained by the said sheriff, and then and there in his custody and close confinement as aforesaid, by virtue of the arrest and writ aforesaid, in consequence of the solicitation, and at the special instance and request of the said Isaac and John, made in manner and form aforesaid, for the relief, ease and convenience of the said Isaac, and in consideration of the said writing obligatory, having been then executed and delivered to the said James for the purpose aforesaid, did then and there indulge the said Isaac Bull, for his ease and convenience, with the liberty of going at large within the walls of the jail or prison of the county aforesaid, agreeably to the request afore■said? of the said Isaac and John. And the said James fur- ■ thek saith, that in and by the aforesaid in part recited act, it is, among other things, enacted in the words following, to

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wit: “ That the several courts of common pleas in this state be, and they are hereby authorized to appoint a certain reasonable space of ground, adjacent to the several jails in their respective counties, to be denominated the liberties of the said jails, and shall cause to be entered on their respective minutes the extent of such liberties, which shall in no instance comprehend a larger space than three acres ; and shall cause the same liberties *and their limits to be designated by enclosures or posts, or other visible marks, placed on the outer lines' of the said liberties, as to them shall seem meet and proper,” as by reference to the said in part recked act, among other things, will fully and at large appear. And the said James avers, that the court of common pleas, held in and for the county of Rensselaer aforesaid, had not, at the time the said writing obligatory was executed and delivered, by the said Isaac and John, to the said James, then being sheriff as aforesaid, appointed a certain reasonable space of ground adjacent to the said jail in the said county of Rensselaer, denominated the liberties of the said jail, as, by the aforesaid in part recited act, the aforesaid court of common pleas was authorized to do, and that no such liberties of the said jail were appointed or assigned by the said court of common pleas, by virtue of the said in part recited act, until the next June term of the said court of common pleas, held after the said writing obligatory' was executed and delivered as aforesaid; and so the said James saith, that the said bond or writing obligatory was not taken by the said James Dole, then being sheriff as aforesaid, by virtue of the said recited act, in manner and form as the said Isaac and John have in their second., plea above alleged, and this he is ready to verify: wherefore he prays judgment, and his debt aforesaid, together with his damages on account of the detaining the debt, to be adjudged to him, &c.

There was asimilar ^replication to the third plea. To the fourth plea the plaintiff replied, that he did not voluntarily suffer and permit Bull to escape, &c. and issue thereon.

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To the replication, to the second and third pleas, there was a demurrer and joinder.

Emott and Woodworth, in support of the demurrer.

Van Vechten, contra.

delivered the opinion of the court. The bond not being taken in pursuance, of the act, but at common law, which is substantially alleged in the plaintiff’s replications, and admitted by the demurrers, it is unnecessary to consider whether there is a material variance between the form of the bond and the directions of the act. The only question is, whether it be good, for the purpose it was taken, at common law.

¡|1¡ The bond being conditioned, that the defendant, Bull, should remain a true and faithful prisoner, is, on the face of it, undoubtedly good ; but it being alleged by the plaintiff that it was taken for the ease, convenience,- and benefit of the prisoner, and to indulge him to go at large within the walls of the prison, it is contended by the defendant, that it is a bond for ease and favor, and therefore contrary to the statute of 23 Hen. VI. c. 10, which is enacted here. (24 Sess. c. 28, s. 13. 5 Com. Dig. tit. Pleader, p. 648, ( 2 W. 25 .) 1 Sid. 383. Salk. 438. 2 Keb. 422. Hard. 464. 1 Saund. 161. Plow. 60 to 68.)

The question is, whether the indulgence of going at large within the walls of the prison, as admitted in the replication, comes within the definition of ease and favor, intended by the act.

I think it does not. It is not inconsistent with the duty of a sheriff to permit a prisoner to occupy the whole or any part of -the prison. He is still, in contemplation of law, in arcta et salva custodia, while he is confined within the walls of the prison, and a bond, conditioned, that he shall remain a faithful prisoner, may, with as much propriety, be taken in relation to the whole, as to any part of the prison. Thus, in England, such a bond from a prisoner within the rules, which are analogous to our liberties, is held to be good. (2 Keb. 423. 1 Sid. 383.) If the sheriff may grant

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to a prisoner the whole extent of the prison, without such a bond, and at the same time not violate his duty, or incur the penalty of an escape, it would seem inconsistent that the bond should be void, when it would not be so if the prisoner were confined in a particular part of the jail.

*A distinction is taken between bonds, conditioned to remain a faithful prisoner, which are lawful, and bonds, to save the sheriff harmless against escapes, which are held to be illegal and void. The reason appears to be, that the former are consistent with the duty of the sheriff, safely to keep his prisoners, and the latter imply the consent of the sheriff to the prisoner’s escape, on the alternative of an indemnity for the consequences. (Yelv. 197. 6 Mod. 225. 6 Bac. 181. Cro. Eliz. 66.)

The general rule seems to be, that a bond, taken by the sheriff to induce a less rigorous imprisonment, is good, if the indulgence be such as he would otherwise consistently with his duty be authorized to grant; but if it confer a privilege inconsistent with his duty, by which the object of the imprisonment, as a mean to compel a satisfaction of the plaintiff’s demand, may be impaired or defeated, the bond is illegal and void. It is then a bond for the ease and favor of the prisoner, and contrary to the statute. So a bond, taken by the sheriff, under color of his office, to acquire profit or emolument, is also void. The statute is directed against oppression on the one hand, and an improper indulgence on the other.

In the present case, although the replication states the bond to have been given for the ease, convenience, and benefit of the prisoner, it also states the nature of that benefit, and that it did not extend a privilege beyond the walls of that jail. This explains the sense of the antecedent terms, and shows that the indulgence was not unlawful.

We are, therefore, of opinion that the bond is good, and that the manner of pleading does not affect the construction to be given to it; and, of course, that the plaintiff ought to have judgment.

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Lewis, J. not having opinion. heard the argument, gave no

Judgment for the plaintiff.(^[1] )

a a (a) See Bac. Ab. Sheriff, O. Dalton’s Sheriff, 356, et seq. Denson v. Sledge, 2 Dev. 136 . Joyce v. Williams, Tayl. 27. Udall v. Rice, 1 Tyler, 213 . Prather v. Beebe, 3 Bibb, 375 . McKeem v. Foster, Id. 48. Field v. Slaughter, 1 id. 160. And see United States Digest Supplement, vol. 2, p. 573, et seq. Richmond v. Roberts, 7 Johns. R. 319. Burrel v. Acker, 23 Wend. 606 . S. C. 21 id. 605.