Thompson v. Lockwood, 15 Johns. 256

Thompson v. Lockwood

15 Johns. 256 | N.Y. Sup. Ct. | 1818

, Spencer, J.

delivered the opinion of the court. This is a writ of error to the common pleas of Orange county. The defendant here, who was plaintiff below, sued on a joint and several bond, entered into by the plaintiff in error and William Lawrence, to the defendant, as sheriff of the county of Orange, conditioned that Lawrence would remain a true and faithful prisoner on two writs of ca. sa. issued out of the common pleas of Orange, and not escape or go without the limits of the gaol liberties of that county.

We are to intend from the hill of exceptions that the plaintiff below proved every thing necessary to entitle him to recover; the bill of exceptions having been tendered to the opinion of the court in overruling the defence set up at the trial.

Under a notice to the plea, it was offered to be proved, that Lawrence had been twice arrested by a deputy of the sheriff, on the same executions, and had been twice voluntarily discharged and permitted to escape by such deputy, t® whom compensation had been made for such permissions to escape before the arrest on the same process, and under which the bond was given ; this evidence being objected to was" overruled.

The principle now insisted on is, that it w'as not competent to the sheriff to re-imprison Lawrence, after his deputy *259had permitted him to escape; and that the bond exacted from Lawrence on the third arrest, after his voluntary escape, was taken illegally, and is void.

The case does not show any act of the plaintiff in the ex-eculions affirming the arrest of Lawrence under them 5 it cannot then be distinguished from the case of Lansing v. Fleet, (2 Johns. Cas. 2.) That ca$e was well considered and very ably discussed, and it settles the point, that after a voluntary escape, the sheriff cannot lawfully retake or detain a prisoner, unless the plaintiff in the execution shall issue a new process ; nor can he detain on the surrender of the prisoner himself, unless the plaintiff in the execution does some act showing his election to hold him on the old process. It is useless to review the cases cited in that case, as they are extremely well examined.

The next point is, whether if the bond is void as to Laurence on account of duress, Thompson can set up that defcnce. It is clearly settled, that where a person is illegally restrained of his liberty, and, whilst under such restraint, enters into any obligation to the person causing the restraint, it is avoidable for duress of imprisonment. (Co. Litt. 253. Jenk. 166. 2 Inst. 482.)

But it is answered that this bond being joint and several, and Thompson being a surety, he cannot avoid the bond for duress as to Lawrence, and the case of Huscombe v. Standing, (Cro. Jac. 187.) has been referred to in support of the position. As a general principle it cannot be controverted, that if a bond be obtained from A. and B. by duress against A., B. cannot plead the duress against A. to invalidate the bond as against him. This, however, is applicable to cases depending on common law principles, and where there is no statutory provision interposed. Sheriffs can take no bond or other security, in matters relating to the execution of their offices, but only to themselves, and by the name of their office, with such conditions as the law prescribes j and any obligation taken by a sheriff in other form, by co-lour of his office, is declared void. (1 N. R. L. 423, 424.) And the act relative to gaol liberties, (1 N. R. L. 427.) making it the duty of sheriffs to let prisoners, on civil process, *260go at large within the limits of the liberties, on giving secu>rity, is a mere modification and extension of the former act. Perhaps, as the bond here taken was in'the terms prescribed by the act, it cannot be said to be void, as being taken colore officii. But the taking the bond was unlawful, and the condition itself Was void. Lawrence could not remain h true and aithful prisoner upon executions on which the sheriff had no right or power to detain him. The bond had no more validity than if the sheriff had taken it without any execution in his hands against Lawrence; a condition that a man shall not plough his land, or go out of his house, being in restraint of a common right, is void. (Bac. Abr. Oblig. (E. 3.)) Conditions in restraint of trade have been adjudged, repeatedly, to be void ; and among other reasons, as against the public good, by depriving the party of his means of livelihood. (Bacon, tit. Bond. (K.))

Judgment reversed.