5 Johns. 42 | N.Y. Sup. Ct. | 1809
Several exceptions have been taken' to r this plea ; but there is one which must be fatal. It is ko answer to this action to say, that the plaintiff is not damnified; the condition of the bond is, that Rowan shall remain a true and faithful prisoner, and shall not depart at any time, or in any wise escape, or go without the limits of the liberties of the gaol; the moment he does so, the bond is broken, and a cause of action arises on the penalty. How much the plaintiff shall recover on this bond, for the escape of Rowan, if he has escaped, is a distinct question. In effect, the bond given to the sheriff is intended as an indemnity, for his liability over to the person at whose suit the prisoner is committed ; but technically, the bond is not a bond of indemnity j and as the plea does not answer the condition of the bond? it cannot be supported. The court do not think it necessary to decide, now, what the plaintiff will have a right to recover. There must be judgment for the plaintiff on $iis demurrer.
Judgment for the plaintiff.
