Sewall v. Franlin

2 Port. 493

Opinion

By Mr. Chief Justice Safford :

This was an action of debt, founded on a bond in the penal sum- of twenty-eight thousand dollars, payable to the plaintiff'; and conditioned, that whereas, said plaintiff had obtained an attachment in his-favor, against the estate of Daniel Stowe, in the sum of fourteen thousand dollars, and which had been levied by James P. Bates, sheriff of Mobile county, on certain goods therein specified; therefore, if the ob-ligors should well and truly return, and cause to be returned to the said Janies P. Bates, as sheriff aforesaid, the specified property, by him attached as afore» said ; or pay and satisfy such judgment as might be rendered in the attachment cause, then the obligation to be void, else to remain in full force. The decía» ration further avers, that afterwards, at a term of the Circuit Court, the plaintiff recovered judgment against said Stowe, for ten thousand seven hundred and eighty four dollars and three cents, on which a ,fi. fa. was sued .out, directed to the sheriff of said county, commanding him, that of the goods, &c. of Stowe, he should make the said sum of money; and on which, said sheriff returned nulla bona. It is further aver-ed, that said defendants did not return the property “ to the sheriff of Mobile county,” nor have they, or either of them; paid or satisfied said judgment.

To the declaration, as above, the defendanisplead-ed— ■. . ■

1. Nul tiel record, on which, issue was taken.

2. A special non est factum, because, the writing' obligatory, if any such there be, was placed by the defendants, in the hands of J. P. Bates, then sheriff of the county of Mobile, who had, under color of, and by virtue of his office, before then, levied said attachment upon said goods, and had taken the same from the possession of said J. T. Franklin, and that the said writing obligatory, was to be retained by him the said sheriff in his official capacity, during the pen-dency, and until the final determination, of said suit of attachment; and that the same was to be re-delivered to them, the said defendants, by the said sheriff, on their returning said goods to him: that said supposed writing obligatory never was delivered by said defendants, or either, or by any person for them, or by their authority, to the plaintiff; and that it never was intended by the defendants, or the said sheriff, that said writing ever should be delivered to the plaintiff ; that if the instrument ever was delivered by the sheriff, or by any one else, to the plaintiff, the same was without the knowledge, privity or consent of the said defendants, or either of them. They further aver, that said sheriff did not, in his life-time, nor has his successor or successors in office, or any one since his death, ever demanded of the said defendants or either, the re-delivery of said goods; nor were they ever notified by said sheriff, or his successor, or by the plaintiff, that the suit was terminated; and that no demand has ever been made by the plaintiff, or by any one else, of the amount of the supposed judgment ; and so they say the said writing is not their deed.

3. That the goods mentioned in the plaintiff’s declaration were of no value.

To the second and third pleas, the defendants demurred. The Court sustained the 2d plea, and thereupon gave judgment for the defendants ; to reverse which, the plaintiff prosecutes this writ of error.

Overruling the demurrer to the second plea, is the cause assigned for error.

The second plea contests the validity of the bond, not on the ground of illegality, or want of a good and sufficient consideration, but that it was never consummated as a bond, to the plaintiff, for the want of delivery to him by the defendants, or any one under their authority. So far as the averments of this plea are in conflict with the expressions, or legal deductions arising on the face of the instrument, I would admit, that the defendants are estopped from contesting them. To what extent the objects of the bond as disclosed by the condition, and the allegations of the declaration are irreconcileable with the facts of the plea,- I will not stop particularly to en-quire. It is, however, a fair inference that the property which it was the object of this bond to release, was in the possession of the sheriff Bates, by virtue of a levy of execution, so that without his agency or assent, or a tort upon his rights, the object could not have been effected. The presumption, therefore, is, that it was executed and delivered to him for this purpose. If then it was taken by him, why was it drawn payable to the plaintiff and conditioned for the return of the property to said Bates as sheriff? The answer would appear to be, that it was considered a statute bond taken by the sheriff in virtue of his office. Then the farther question arises, whether as the bond grew out of a judicial proceeding, was taken by the sheriff in virtue of his office, and intended as a statute bond, it can be enforced as an individual transaction, as a bond valid at Common Law, subject to recovery by action of debt; also, if thus recoverable, does the present declaration contain the necessary allegations?

These latter views of the subject are necessarily presented by the demurrer to the pleas. The principle, that a' demurrer to any subsequent part of the pleading, may be referred to the antecedent pleadings, so that the plaintiff’s demurrer to the defendant’s plea, may be visited on the declaration; and that a bad plea is sufficient for a defective declaration; is too well settled, to- require comment. Objection is urged in argument, for the defendant in error,against the sufficiency of the declaration, on the ground,, that the bond is conditioned for the return of the-property to James P. Bates as sheriff of Mobile county ; and that the breach alleged in the declaration is,that the defendant failed to return the property “ to the sheriff of Mobile county,” or pay the judgment. This discrepancy is found to exist; and it is also true,, that the declaration contains no averment -that the-property belonged to Daniel Stowe ; nor is there any . allegation that it was subject to the execution, or any-other averment from which injury would necessarily ■result as a 'consequence of a failure to return the ■ property — there is no averment that the defendants, or either, received possession of the property, or any other consideration, or adequate inducement, for- entering into the bond. The stipulation that the obli-gors would return the property, or cause it to be returned, affords no sufficient implication that they claimed any interest in it, or that they took and detained it from Stowe, or other rightful owner. Then the giving the bond by the defendants .may have been merely a gratuitous- act, A statute bond given in the manner prescribed, without consideration, oth-ér than as security, or as the means of replevying property which the party or parties are authorised by law to do, is Unquestionably valid, without scrutiny into the loss or injury accruing to the obligee, or benefit to the obligors. It is not however, contended, that this is such bond, though it may have been so-intended. . As a statute bond, it is invalid on the ground of its not having been executed by the defendant in the attachment, or any one as agent, attorney or fact°r for him according to the principle decided in Cummins and Foster vs. Gray.

Footnotes

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a The same statute was in force when both bonds were given, and is equally applicable to both cases,b though perhaps subsequently repealed,c It is also insufficient as a statute bond, in as much as it is made payable to the plaintiff in attachment, instead of sheriff, in whose name, replevy bonds are required to be taken.d

But it is contended, that this bond,- though insufficient under the statute, is valid as a Common Law bond, and that this action is sustainable upon it as-such. In support of this position^ reference is made to the case of Worsham vs. Egleston.e In that case a. forthcoming bond was given for property levied upon by fi fa. The condition of the bond recited the amount of the execution, including the sheriffs' commissions; the District Court gave judgment on the bond accordingly. The Court of Appeals reversed the judgment on this ground, and rendered judgment for the true amount, excluding the commissions, to which, under the circumstances, he was not entitled. The defect in that bond, was only by way of recital in ’the condition, which was not supposed to vitiate it. Whether the bond was good under the statute, or the •Common Law, was not decided or made a question. We are also referred to Beale vs. Dawnman.a There, ■debt was brought on a forthcoming bond, payable to the sheriff, instead of the creditors, as required by .statute; the plaintiff obtained judgment on the plea, •of non est factum. In the prosecution of errors thereon, it was assigned for causes. 1. That the bond, was not taken according to law. 2. That the-remedy was by motion. The Court of Appeals remarked only, that the assignments were in conflict; that the first, if true, removed the only objection to the •second; and therefore overruled both. In Johnson vs. Meriwether,b a similar decision was made; judge ment was rendered, without any reasons being expressed in' support of the decision. But a main point urged in the argument was, that an earlier act which •remained unrepealed, authorised such bonds to be given to the sheriff or other officer serving the execution ; that under the several statutes in pari ma-teria, the parties were at liberty to make the bond payable to the officer, and recoverable in the action of debt; or to the creditor, and recoverable on motion. If such were the views which governed these cases, the principle has no application to the case before us.

But in Hoe vs. Tibbs,c it was held, that a prison hounds bond, though void under the statute, being payable to the plaintiff instead of the sheriff, might be good at Common Law; and such the Court then understood to be a principle decided in Johnson vs. Meriwether.-Hewlett v. Chamberlayne;d Scott v. Hornsley;e Bell & Harrison v. Marr;f Wilkerson v. McLocklin & Co.;g also, Sugg v. Burgess & Davis.h

In Morse vs. Hodsdon, et. al.i a plaintiff in reple vin (being required to do so by the coroner to whom the writ was directed) gave his bond with security, conditioned to prosecute his said replevin to final judgment, and recover the said goods ; else the bond to be in full force. The statute required a bond with .condition only, that the plaintiff should prosecute, and also make return and paxj damages if judgment be against him. In debt on this bond, the Court held, that as it had been voluntarily given, and the obli-gors were by statute entitled to relief against the penalty on payment of the just damages, the bond in that way was no more prejudicial to them, than one with condition in due form would, have been; and that as the bond was to be considered good unless declared void by the Common Law or statute, and they knew of no law by which it was made void, it was to be considered valid. In Clap, administrator vs. Cofran,a the action was debt on a bond given by a prisoner and his securities for the liberty of the Jail yard, in which, by statute, the penalty should have been in double the amount of the judgment, for the satisfaction of which he was imprisoned, but this was for a less sum. This objection being pleaded in bar, and the plea demurred to, the Court remarked, that the wrong sum was probably inserted through an error in computation and not from design. That the sheriff was liable as in case of an escape, the bond not being in pursuance of the statute, consequently no justification to the officer for permitting the liberty; yet, that the plea in bar was bad : and that the defendants could be relieved against the penalty by a judgment for the true amount of the debt.

The annotator to Saunders,b maintains the following propositions. That “ a bond to save the sheriff harmless from escapes is against law;c but a bond to pay money into Court at the return of a fi. fa. is good, for though it be done by colour of office, and the condition is not according to the statute, yet it is valid, the statute extending only to bonds given by or for prisoners. So a bond to save a sheriff harmless against a false return of a fi. fa. is good. If any thing is added to the condition prescribed in the act, 'which is not legal, that which is inserted against the form of the act, avoids all the rest. But if a bond be taken in a circumstance contrary to the provision of the statute that is only prescribed for the direction of the sheriff, as to take sureties, which is for his safety; or if any thing is required specially by the condition, that the act only imports, but does not literally require, such variations do not hurt.”

In Syme vs. Griffina the action was debt on a prison bounds bond, conditioned that the debtor should keep within certain prescribed bounds, until he should discharge the debt and costs, and save the sheriff harmless; when the legal condition, as prescribed, was simply, “ that he should not depart or go out of the rules or bounds of the prison to which he was committed.” In that state, is the farther statutory provision, that “ every obligation by any sheriff taken in other manner, or form by color of his office, shall he null and void; except in any special case, any other obligation is, or shall be by law, particularly and expressly directed.” The Court said the question there was, whether the conditional words in the bond in question imported a substantial condition beyond that which the law authorised? They considered such to be the effect of the superadded words; consequently that the bond was void; and that every bond taken in such manner as to induce or encourage neglect of duty in a public officer, as void by the common law.

The case of the brig Alligator,b has been referred fo on the part of the plaintiff in error. That was a case of libel, in the admiralty, where the articles seis- ed, had been delivered on bail, bj order of the Court, the claimant being bound to respond to the appraised value in case of final condemnation. It did not appear that any statute existed, authorising the delivery on bond: but Judge Story, before whom the trial was had, remarked, that no doubt had previously existed respecting the right of that Court to take such bonds, or to grant judgment, and award execution thereon in the usual summary manner. He also said, whether there was any statute existing, which authorised the delivery on bond, or not, he did net think material: that it .being in a civil cause of admiralty and maritime jurisdiction, nothing could be better settled, than that the admiralty could take a jidejussory caution, of stipulation in cases in rem, and may, in a summary manner, award judgment and execution thereon. Again, it is said, a bond taken in •such case, even supposing it void as such, which he did not admit, might be good as a stipulation ; that in all cases of that nature, the security, whatever be its form, is taken by order of Court, upon the voluntary application of the party, and therefore is apud actu — that having jurisdiction of the principal cause, the Court must possess jurisdiction over all the incidents, and may, by monition, attachment, or execution, enforce its decrees against all who become parties to the proceedings. The principles of this decision, appear to have been materially influenced by the extraordinary powers of the admiralty, analagous to those of chancery, and'the fact, that such bonds, are given voluntarily, and in pursuance of an order of the Court; also by the consideration, that jurisdiction over the principal cause, and the practice of the Court in other respects, gave it jurisdiction over all the incidents. This doctrine is farther illustrated by the case of Respublica vs. Lacaze, et al.a The action was debt on a bond, taken in the Court of Admiralty of Pennsylvania, in the nature of a caution or stipulation. Chief Justice McKean, in delivering the unanimous opinion of the Court, said, “ Although a Court of Admiralty could not take a recognizance, which is a bond or obligation of record, (the Court not being one of record,) yet it could take a caution or stipulation, which is usually for appearance, or to perform a decree, &c. and is in the nature of a recognizance ; that there was no positive law for declaring such a writing void, it was not given for any thing against good morals, or illegal, but for a meritorious valuable consideration ; that if the taking the writing in Court could not give it any additional sanction, so, on the other hand, it could not destroy or prejudice its legal operation; that though void as a stipulation, it was good as a contract — just as was determined in the case of Ascue vs. Hollingsworth.b Further, he remarked, that an instrument'- void as a stat. staple, may be good as an obligation ; and that the case in 2 Strange, favored the principle; therefore, he thought the transaction in question might be considered as done out of Court, and that it was good and binding on the parties by the Common Raw.

From this review of authorities, it appears that bonds taken by civil officers, and in relation to judicial proceedings, though without the authority of our statute, (like bonds between individuals, under other circumstances) if they appear to have been given • on valid and sufficient consideration, such as is neither illegal or immoral, may be good as , common law bonds. This principle is farther sustained by the case of Lampion vs. Taylor a There, a slave had been levied on by virtue of a fi. fa. and claimed by a third person, and by the sheriff, left in the hands of the claimant. At the request of the plaintiff in execution, the sheriff summoned a jury to try the right of property, who found in favor of the claimant. Upon this, the plaintiff executed a bond of indemnity, such as required by law, to justify the sheriff in selling the slave. The claimant refused to surrender the slave to be sold, but executed to the sheriff a bond of indemnity, against all suits and demands, for not selling the slave; all these circumstances were recited in the condition. On this bond, the action of debt was brought, the declaration stating all the facts, and averring a breach of the condition. The validity of the bond was considered, on demurrer to the declaration, in the Court of Appeals, in Kentucky. The Court adjudged the bondmfoii, on the principle that it was not taken as a consideration or inducement to the sheriff to neglect or violate his official duty, but as an indemnity for not selling when he was incapable of doing so, by reason of the claimant’s refusal to deliver the property; that it was the privilege of the sheriff to constitute the claimant, or any other, his bailee ■of the property, pending the claim, and he was not bound to anticipate this refusal to surrender, and without which he could not sell. The question was considered materialljr different from what it would have been, had the sheriff retained the possession of the slave until the plaintiff in execution had tendered his indemnifying bond, and then having the authority to sell, instead of doing so, had taken the bond from the claimant as an indemnity for his neglect of duty. That Court recognise, as a general rule, “ thatwhere-ever the consideration which is the ground of the promise, or the promise, which is the consequence or effect of the consideration, is unlawful, the whole contract is void” at Common Law. They admit some exceptions, such for instance, as an indemnifying bond to a sheriff for taking in execution property not subject to the writ; or for not selling property levied on, and claimed by such obligor. I apprehend, however, that these exceptions, if they can be considered such, rest on the doubt respecting the truc tille, and are not to be regarded as contracts for palpable violations, or neglect of duty.

In the case before us, nothing appears of record disclosing any criminal or vicious motive in the transaction, though siricti juris, the replevin by an indifferent person, was there unauthorised. The only injury that could result from the act, was; that the defendant in the attachment, or some claimant of the property, may have been deprived of their right to replevy. But as there is nothing of record shewing that the defendant was thus injured, or that •the replevy was not by his friends, and intended for his benefit; or that any other person had, or wished to interpose any adverse claim, we can not assume the facts. On the contrary, as the record does not disclose the circumstances, so as to shew what disposition was made of the property — whether it was subject to the execution, or what was the motive or inducement of the defendants for entering into the bond ; no sufficient consideration to sustain it, is either expressed or implied. It would seem, at least, that this uncertainty should have been supplied by the necessary averments in the declaration. But other views of the case, to which allusion has already been made, interpose farther obstacles to the recovery, as here sought; the most material of which, is, the discrepancy between the condition of the bond, and the breach assigned — the former being, that theob- ligors would return the goods “to the said James P. Bates, as sheriff aforesaid,” — the latter, that they did not’return them to the sheriff of the county; who, at the time of the alleged breach, must have been a different' person.- The bond was given in April, 1827: the return-of nulla bona was in April, 1831, four years subsequent — a time at which Bates, (if living, and it seems he was not,) must, by the constitution, have Been ineligible to the office. If the writing obligato-, ry,'could be viewed as a recognizance, taken by the sheriff -in the regular discharge of his office, and therefore, incident to the cause; the effect of the condition'in the bond, might only have been, to deliver the .property to the sheriff for the time being, regardless-of the individual incumbent. But viewing this instrument- in- its most favorable light, as a common law bond, the legal intendment does not apply.— When regarded as a private transaction, the individuals concerned must be considered material; therefore, an obligation to deliver property to James P. Bates, as- sheriff, does not necessarily imply, an obligation to deliver to T. L. Toulmin, as sheriff. For aúght-we-can know, Bates may have been- sheriff de facto, 'the other, de jure, at the time the bond was given; -and the former may have remained the same, and'-recéived the property as such, prior to the return oí-miMú'bona, by the latter. The obligors may have chosen in their common law bond, to-recognize Bates alone as sheriff; or to bind themselves to deliver to him, or' his personal representatives individually, and have used the designation, sheriff of Mobile county, only as descriptio persones. At least, I think (without deciding whether that would be sufficient) that the necessity, if any, for the variance between the terms of the - condition, and the breach assigned, should have been shewn and explained, by proper averments in the declaration.

These views of the case are perfectly consistent with the argument of the plaintiff’s counsel, that a. party can not be permitted to aver an intention, different from that imported by his acts, or the expressions of his deed.

Another serious objection to the recovery, in the manner and form here sought, is, that the bond is in the nature of a replevy bond, for property attached. The statute, authorising such replevy, in all cases, except one, requires the sheriff to permit it, on bond with sufficient security, as in case of special bail; the exception is in the case of absconding debtors'; in this only, is the sheriff authorised to require a bond for the return of the specific property, or the payment of the judgment. Nothing appears of record to show, that Stone, was charged as an absconding debtor: if he was not, and the sheriff had taken from him, a bond in the form of this, no doubt it would have been adjudged, oppressive, illegal, and void, as in the case of Syme vs. Griffin. If so in relation to the defendant, I should consider it no better in reference to his volunteer friend, or any indifferent person, who has been permitted to replevy. Therefore, I am of opinion, the declaration does not disclose a legal and sufficient cause of action; consequently, that the judgment below must be affirmed.

By Mr. Justice Thornton :

This was an action of debt, brought upon a bond; wkijh, from the declaration and pleas, appears to have been executed in consideration of a surrender to the defendants in error, who were also defendants in the Court below, of certain property, which had been at tached by one James Bates, as sheriff of Mobile county, by virtue of a writ to him directed, at the' suit of the plaintiff, against one Daniel Stowe; the condition of which bond was, the return of the said property upon the determination - of the suit, or to pay and satisfy such judgment as might be rendered therein.

The declaration avers the determination of the suit, and the failure of the defendants to re-deliver the property to the sheriff of said county, or to pay and satisfy the judgment of the Court

The only plea, which is brought in review before this Court, contains, in addition to the circumstances’" above set forth, these further allegations, viz. that it was not intended, that the bond should be delivered to the obligee, who is the present plaintiff; that it was delivered up to him by the sheriff Bates, without the privity or consent of the defendants; that they were not notified of the determination of the suit, nor requested to deliver up the said property,-or to pay the said judgment. The illegality of the bond, on the score of its defective, or vitious consideration, is not relied upon distinctn ely, as a matter of defence. To this plea, the plaintiff demurred, and upon that, judgment was rendered for the defendants; from which a writ of error is prosecuted to this Court, and it is assigned as error, that the Court below overruled the demurrer, and gave judgment for the defendants.

The first question which naturally presents itself, is the validity of the plea, the matter of which may be comprised in two propositions :

First — that the bond is void for want of delivery; and,

Secondly — that no notice of the happening of the contingency, upon which the duties specified were to arise, was given, or demand made of compliance,

. But from the view, which I take of the case, -it'will be unnecessary to bestow any consideration upon the plea. It is very properly contended for, on the part of the defendants, that the effect of the plaintiffs demurrer, is to bring his declaration to the test; and if that be found insufficient, the demurrer should have been overruled, as it was; for, a plea, though bad in itself, is good enough for a bad declaration. Thus, then, we are led to consider the plaintiff’s declaration ; with regard to which, the main matter urged against it, is, that the bond, which is the foundation of it, will not sustain the action. The first question in- relation to the bond, is, whether it is valid as a statute bond, in pursuance of the act, authorising the replevin of property taken in attachment, which, in all probability, it was at the time intended to be. This’ question is settled in the negative, by the cases of Cummins & Foster vs. Gray and Adkins, et. al. vs. Allen, heretofore decided by this Court. The sheriff should have been the obligee in the bond, and not the plaintiff in the attachment. It was not executed by’ the defendant in the attachment, or by his agent or attorney; nor by the defendants in this suit, as claimants to try the right: and by the decision first above cited, that part of the act, which would seem to au-’ thorise the commitment of' the property so taken, to other persons, is limited in its application, to proceedings before justices of the peace; which construction of the several acts upon the subject, as they then stood atleast, we are not now disposed to disturb. The next ■ and most important enquiry in the cause is, whether the bond executed under the circumstances disclosed in the recited condition, is valid as a Common Law obligation. The surrender of the property by Bates the sheriff, which must be conceded to be the consid eration of the instrument, was evidently contrary to Ms duty. It was in violation of the rights of both parties in the attachment, thus to divest himself of its control. The defendant, in that action, had a right to reclaim the property, by the execution of a bond appropriate to the nature of the case, either a bail bond, if a non-resident, or a common replevin bond, if an absconding debtor; which by the act of thesher riff, he had rendered impracticable. So the plaintiff had a right to demand, that the property should have remained impounded in his hands, until such legal warranty was furnished for his benefit. Thus then, whatever may have been the inducement, or motive in the minds of the parties between whom it was concocted, the consideration, and the effect of this bond, were, a dereliction of duty on the part of the officer, and a violation of the rights of both the parties litigant in the attachment.

A bond taken or executed against a positive prohibition of a statute, is clearly void: so if it be substantially variant from the statute, with the provisions-of which, it was intended to comply; it will be inoperative as a statute bond. But if it be not in express violation of any statute, though it may differ from it so materially as to be invalid as a statute bond, yet if voluntarily executed, it will be good as a Common Law bond, if neither the consideration, nor the promise, be in conflict with its principles. Now this bond is not expressly forbidden by any statute; nor is it taken in conformity with any. Its validity then must be tested by the principles of the Common Law. One of the best settled rules of that law is, that, wherever the consideration of a promise, or the promise itself, which is the consequence, or effect of the consideration is illegal, there the bond is void. As to what constitutes such illegality in the consideration as will avoid the contract, or agreement, it is said, that a contract is unlawful in the proper sense; if it be the object to induce the omission of something, the doing of which is a duty in the person with whom it is made.a And again, in page 119 of the same thor, it is said, a contract or agreement is unlawful in the proper sense, if it be to encourage unlawful acts, or omissions; and to illustrate these rules, he puts the case of a sheriff who had levied four oxen by virtue of a writ of withernam, and returned them to the defendant, upon his bond, given to indemnify him concerning the oxen. The bond was held to be void, for that the sheriff ought to have kept the property; and _the bond was made to aid him in the violation of his duty. The general doctrine indeed is admitted, but it is contended, that in the case of a sheriff, an exception to it, has been established and recognised by reported cases, which in their principle, embrace the present, and maintain the validity of this bond. This has led me. into an examination of all the cases within my reach,, touching this matter, comprising many of a very early date, as well as of more recent adjudication. The result of my enquiries1 has been, that though there may be some apparent conflict of authorities, yet the general tenor of them is adverse' to the exception, upon the existence of which, as it seems to me, this bond can alone be sustained.

The cases are numerous to the points, that a bond or promise is void, if against a statute-: and that, though not in conformity with any statute, yet it will be upheld as a Common Lav obligation, unless in conflict with its principles. But there is a dearth of cases, comparatively, in which the question directly arises, whether a promise or bond is valid which has been taken in consideration of tlie commission, or omission of an act, by an officer, contrary to his official duty.

Of the cases above alluded to, I will take a brief review, commencing with Beanfage’s case, reported in 10 Coke. It was there held, that a sheriff may take a bond from a defendant, against whom he has a writ of fieri facias to pay the debt, at the return of the writ. In this case, the reporter says, the doubt which was conceived upon it was, upon the general words of the act of 23d Hen. VI, chap. 10. The bond was held to be valid, and not embraced by the statutory prohibition. The adjudication does fairly imply, not only that the bond was not void as being prohibited by the statute, but also that it was not void for any defect in its consideration. For although the main question was, whether the statute prohibited its execution, yet if it had been void at Common Law, it would doubtless have been so ruled. And besides, it' is expressly affirmed in the case, that it had been ruled on another occasion, that such a bond was not void at the Common Law. This case then, either recog-nises the exception to the general rule as above stated, or the consideration of the bond was not illegal. It does not appear what the consideration of this bond in- Beawfage’s case, or in the case cited in it, was. It may have been in consideration of a return of property, alread}r levied by the Sheriff in virtue of the Ji-fa. or in consideration that he would not levy; or it may have been without either, but a promise or cov-' enant, made in consideration of the existing duty or indebtedness. Now if the last mentioned were the consideration, it was indubitably legal, and as it does not appear to be otherwise, the case can not be relied upon as conflicting with the doctrine, or illustra tion, cited from Powell. If the consideration had been a return of property levied, to the defendant in the writ, .it would seem that even this would have been a valid consideration, and not an illegal one, as was held in 1 Salk. 32, which latter case has also been relied upon as establishing the exception of the case of sheriffs, from the general rule of law. This last case, was an assumpsit to the officer, to pay him the debt, in consideration of a return of goods actually levied. Upon demurrer, it was endeavoured to be assimilated to the case where the consideration was to permit the prisoner to escape, who was in custody on a capias; but the Court held, contra: “by the capias he is to take the body, and keep in salva custodia, and to give liberty^, is contrary to the writ: but that is now to raise the money; and the sheriff may, upon a fi.fa. sell the goods, and this is no mote in effect.” So that the principle of this decision in Salkeld, rather maintains the general rule as applying to the sheriff, than establishes the exception; for the reasoning is, that the sheriff did not transgress his duty, and therefore was allowed to recover.

In the case of Arundel vs. Gardiner,a which has been relied on for the same purpose, it was held, that if a plaintiff in a writ of execution delivered by him to the sheriff, affirm to the sheriff that certain goods are the property of the defendant in the writ, liable to the execution, and require him to execute it, he shall be held liable, on a promise to execute a bond of indemnity for a seizure of the goods, notwithstanding the sheriff was a trespasser in making the levy, which was the consideration of the promise. The objection to the consideration of this promise was urged in de-fence, but “ non allocatur; for he shewing the goods, and.requiring the sheriff to do execution,. it.is rea sonable that he should save him harmless; and a promise to that purpose is good enough.” That the act done by the sheriff here, which was the consideration of the promise, was a tort, and contrary to his duty, the case shews; fora recovery was had against him by the owner of the goods : and yet the reasoning of the Court will shew, that the principle of the case, is not opposed to the doctrine as laid down by Powell. The principle of the case is, that the conduct of the plaintiff in the writ, who was defendant in the case, operates as an estoppel, preventing him from taking advantage of the illegal nature of the consideration of the promise. As where A, is about to pay value for an obligation upon B, which is a forgery ; and applying to B, it is affirmed by him, that the signature is genuine; here, if sued upon this bond, B will not be permitted to defeat a recovery, by alleging the forgery; for he has induced A to take it; and it is reasonable that he should pay it. Still the doctrine would be unimpugned, that a forged bond is void in law. Subsequent to this last determination in Cro. James, in the 33d of Eliz. (Mead vs Bygott reported, in Cro. Eliz. 230,) the doctrine was settled in accordance with the general rule of the Common Law, in a case somewhat analagous to that under our consideration; both being cases of attachment, where the duty of the officer is to keep the property, or to dispose of it, in a definitely prescribed manner. One Stokes was attached by two quarters of corn, at the plaint of the defendant in the case, to whom the bailiff delivered the corn, upon a promise to save the bailiff harmless of the same. Upon assumpsit brought on the promise, in arrest of judgment it was moved, that the consideration, and the promise were against law, and void ; and so was the opinion of the Court; •“For, first, attachment cannot be of corn out of sacks — (by statute of 10 Will. III.) And secondly, if it may, it is to be kept by the bailiff; and be ought not,to deliver it out of his hands to the party plaintiff ; and so, the promise is against law and void.” Now in the second resolution in this case, the illegality of the delivery out of his hands, upon the terms disclosed, as it seems to me, is the ground of the decision.

It cannot be denied, that the custody by a bailee of the officer, is the custody of the officer himself; for it would be too inconvenient, if not impossible, to require the exclusive personal custody by an officer of all the effects, which by virtue of his office, may come into his hands; and the plaintiff in the attachment, being selected as such bailee, would make no difference in the case. But it can be no longer his custody, where, as in the case last cited, he so disposes of the property, as that he cannot reclaim it to satisfy the exigencies of justice, but relies on the bond of the bailee to save him harmless from the consequences of the illegal act of surrender. From this view of the law of the case, I have been led to the conclusion that the demurrer was properly overruled.

Reference was made by the counsel for the plaintiff, to a case in 1 LittelPs Selected cases, 273, which was pressed with much force of argument, as being decisive of the validity of the bond sued upon in this case. Upon an examination of that case, I apprehend the just extent of its authority to be, that a bailee of property to whom the sheriff has warrantably committed the custody of it, may execute a bond to indemnify the sheriff against the consequences of his, the bai-lee’s refusal to re-deliver it, when it was properly de-mandable, and unjustly detained. In this proposi tion there is nothing exceptionable, for the consideration was legal, and the bond only binds him to do, what without it, was his moral and legal duty. The Court, arguendo, I acknowledge, do intimate the opinion, that even if the surrender of the property to the said'bailee had been in violation of the duty of the officer, and illegal, yet that the case of a sheriff constitutes an exception to the general rule of law, and that the bond would be good. But I do not recog-nise the justness of this conclusion from the authorities which they cite to maintain it.

The judgment of the Court below must be affirmed.

Mr. Justice Hitchcock not sitting.

June Term 1833.

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Toul. Dig.17 sec. 14

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Act of 1833, Aik. Dig. 40 § 11. id. 41. § 13

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1 Stew. 130.

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1 Call, 41.

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1 Call, 219

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3 Call, 454.

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1 Murf. 500

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a 1 Wish. R.

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1 Call, 35.

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Id, 40

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Id. 42.

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2 Stev. 509

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5 Mass. R. 314

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7 Mass. R. 98.

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1 Rep’s. 161, note 1.

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Stat. 23 Hen. 6.

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4 Hen. & M 277

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1 Gaffis. 345

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2 Dallas, 118

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Cro.Eliz.544

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Littell's seld Cases, 273

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1 Pow. 113.

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Cro. Jas. 652