Sullivan v. Alexander

19 Johns. 233 | N.Y. Sup. Ct. | 1821

Spencer, Cb. J.

delivered the opinion of the Court. Tí question is, whether the bond is void, as taken for matters n< authorised by statute, colore officii? The words which have bee superadded to the condition, as authorised by statute, are, tin the defendant A. “shall, at the request of the said J.L.B as sheriff aforesaid, surrender himself to the said prison,!’ &x This is a substantial and material part of the condition. In Thompson v. Lockwvod, (15 Johns. Rep. 256.) we held, that the t relative to gaols, sess. 36. ch. 49. s. 6. (1 N. R. L. 429.) to letting prisoners go at large within the limits of the liberis, was a mere modification and extension of the act concerning sheriffs, &c. (1 N. R. L. 418. 423. sess. 36. ch. 67. s. 13.) which renders void any obligation taken by the sheriff, by colir of his office, in any other form than is prescribed by the amte Beawfage's case, (10 Co. 100.) Kidwelly v. Brand, Plowd. 60. 68.) and Rogers v. Reeves, (1 Term Rep. 418.) are some of the many cases which show that such a bond is void, mere verbal difference or departure from the provisions of ic statute, will not render a bond to the sheriff void; but when tere is a substantial variance, as if the sheriff adds to the cognition that he shall be kept without damage against the king id the plaintiff, that will make the whole condition void. The leriff, in this case, had no right to require the defendant, Alzander, to surrender himself to prison, at his request. He has right to reimprison a defendant who has been admitted to the berties of the gaol, in one case only ; that is, when the sure-es taken for the prisoner are insufficientblit the condition to iis bond does not embrace that case. We are of opinion, herefore, that the defendants are entitled to judgment.

Judgment for the defendants,