Love v. Palmer

7 Johns. 159

• Court: New York Supreme Court
• Decided: November 15, 1810
• Status: Published

Opinion

Per Curiam.

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.