Koons v. Seward

The opinion of the Court was delivered by Sergeant, J. The rejection of this evidence by the court beIaw was erroneous. It is true, the defendant’s undertaking was not bail for the defendant’s appearance, agreeably to the provisions of [389] the second section of the act of the 20th of March 1810, but an undertaking for the payment of the debt and costs, and therefore being substantially variant from the security prescribed by that act, would be void as a statutory obligation. Claasen v. Shaw, 5 Watts 468. Nor could it be good at common law, for if given for ease and favour on a capias ad respondendum, it falls within the prohibition of the statute 23 Henry 6, c. 9; which, though not reported by the judges, has been considered in force in Pennsylvania, and extends to all sheriffs, officers, and ministers. Biit these principles apply only if the obligation were given to the constable; it being the policy of the law to prohibit him from taking such securities, in order to prevent his partiality or oppression. It has never been held that such a security may not be given to the plaintiff himself. On the contrary, in 2 Jones 95, 2 Mod. 305, it was held that, a third person may give the plaintiff a bond, that the party against whom a capias had issued, shall pay the money, or render himself at the return of the writ; because this was not by direction of the officer, but by the agreement of the plaintiff. So in Alleyn 58, it is held that, the statute does not extend to a bond given to the plaintiff himself. It results, then, that the undertaking ■in the present case, if given to the plaintiff, was good: if to the officer, it was invalid. It does not appear on the face of the agreement, in whose favour it was taken, or for whose use. The defendant insists it was to the constable, because he undertook after-wards to assign it to the plaintiff. On the other hand, the plaintiff insists that he did not sue under this assignment, but in his own name, and that it was taken for his use, and adopted by him. These are questions of fact for the jury on the whole evidence in the cause, and the agreement ought to have been received in evidence, that the fact to whom the agreement was given might he inquired into by other testimony and decided. Judgment reversed, and a venire de novo awarded.