Bills v. Comstock

Hubbard, J. The defence, relied upon at the trial, was want of consideration for the note, and that it was taken by the officer in violation of his duty, and therefore ought not to be enforced. The officer’s duty was clearly marked out in the precept committed to him, viz. “ to convey said Cooley to the common jail in the county aforesaid, and to deliver him to the keeper thereof, together with this precept.” Under this mittimus, he arrested the prisoner, and was convey-, ing him to the jail; and, while on his way, took the note of the defendant, and discharged the prisoner. Without deciding the question as to the consideration for the note, and how far the defendant is justified in setting up want of consideration, (which his counsel has not pressed,) we think the act of the officer was clearly a violation of his official duty, and against public policy. He undertook to commute the sentence of the justice, and instead of committing the convict to prison, or receiving the fine and costs, in default of payment of which the convict was sentenced to be committed, he took the promise of a third person to pay the same; an executory agreement which might never be fulfilled, and was liable to be disputed; while the party convict [470] escaped the sentence of the law. No such power to commute the sentence, and to substitute a promissory note, is given; and though the intention of the officer, in this case, may have been good, yet such a practice would lead to collusion between officers and criminals, to the great injury of public justice. In Denny v. Lincoln, 5 Mass. 385, an officer, having an execution, forbore to arrest the debtor, on the promise of a third person to deliver him to the officer at another time; and this promise was held void. So, in Ayer v. Hutchins, 4 Mass. 370, an agreement to indemnify an officer for a voluntary escape was held void, as against the policy of the law. And this is an ancient doctrine of the law. See cases collected in 22 Amer. Jurist, 271, and in Story on Con. § 205. The case at bar is much stronger than those. They were cases of officers’ violation of law in the discharge of duty in the execution of civil process. This is the misconduct of an officer in the discharge of his duty in the execution of criminal process, in which the whole community are interested that the law should be enforced. Verdict set aside, and a new trial granted.