7 Wend. 188 | N.Y. Sup. Ct. | 1831
By the Court,
The facts in this case have very much the appearance of a design on the part of a defendant, under arrest on legal process, to take advantage of an officer for relaxing the rigor of its execution through motives of humanity. Ministerial officers, in the execution of process, are often induced from such feelings, to temper the sternness of justice, and often do so, under perilous respon- • sibility; and it would be a reproach upon courts of justice, if they did nqt encourage so generous a spirit, so far as may be compatible with the rights of parties or the public, and the entire accomplishment of the ends of the law. We would not countenance a looseness in the execution of their duties, nor
We think the judge erred in putting the case to the jury upon the first point, to wit: “ that if they believed it was the intention of the defendant in taking the bond of H. O. Bronson to hold him responsible at all upon it, in case of an escape, or until new bail should be procured by the plaintiff, that then it amounted to an acceptance of the bond, and they should find for the plaintiff.” Now it is quite clear, that the right of the officer to rely upon the bond for the security of the appearance of the plaintiff according to the exigency of the writ, would not depend solely upon the intention with which he received it; if there was not a delivery of the bond by H. O. Bi’onson, or if it was the agreement of the parties at the time it was put into the hands of the officer, that it was not to be delivered to take effect until additional bail was procured, then, whatever might be the intention of the defendant, the bond would be inoperative, and have no legal existence. There must be a delivery as well as an acceptance, to give validity to a deed.
It is true the bond was delivered to the defendant at the time of its execution by H. 0. Bronson, but for what purpose 1 If for the purposes expressed therein, then it would be-valid; if as a mere deposit until additional security was obtained, clearly there was no delivery ; and if an escape had taken place, the defendant could not have enforced its obligation for an indemnity. The mere manual tradition of a deed by the grantor or obligor to the grantee of obligee, and nothing else, would be prima facie evidence of a legal delivery, but not necessarily conclusive and inexplicable. The party may explain and rebut the prima facie legal effect of the act. This is not impugning the doctrine applicable to an escrow; it is only allowing a party to contest the delivery. It follows, from these principles, that the judge, upon the facts in the case, should have put to the jury not only the acceptance of the bond by the officer, but the delivery by H. 0. Bronson, for the purposes expressed in it: for if the jury should have negatived that fact, the verdict ought to have been for the defendant.
New trial granted; costs to abide the event.