Camp v. Allen

Ewing, C. J. The demurrer to the third plea is in my opinion well taken. The defendants admit in express terms a breach of the condition of the bond. .They say that Allen did not keep'within the bounds of the prison until discharged by due course of law, and on the contrary, walked out of the same, but for plea and as a bar to the action, they allege that the plaintiff, the sheriff, has not since sustained any damage, nor been obliged to pay any money in consequence thereof. Now the stipulations of the'bond are,-that Allen shall well and truly keep within the bounds of the prison, and not walk off or depart the same until discharged by due course of law. And when the obligor does what he has promised not to do, or omits what he has engaged to perform, the bond is forfeited and a right of action accrues to the obligee. The allegation that the plaintiff has not since sustained any damage, or been obliged to pay any money, can form no bar to the right of action which resulted from the forfeiture of the bond. The ■ defendants improperly seek to make the right of action depend on conditions not contained in the statute or the bond. The objection to this plea, is farther sustained by the language of the act of the legislature under which the bond was taken; “ and if he walk out of the said bounds, the said bond shall be forfeited.” Rev. Laws 426, sec. 100; and by — 17 — the provisions of a subsequent act, Rev. Laws 651, sec. 5, which declares the voluntary and intentional walking or going out of or beyond the prison limits, to he an absolute forfeiture of the bond, and authorizes the sheriff to whom the bond was given, or the plaintiff at whose suit the prisoner may be in custody, on assignment of the bond, to maintain an action, notwithstanding the prisoner may have returned within the limits before the commencement of such action. The right of action of the sheriff, as well as of the plaintiff, is here directly recognized; and the necessity of damages as insisted on by the pica, in order to maintain the action, is clearly repelled. The argument drawn by the defendants’ counsel, from the use of the plea of non do/mnifieostus, in cases of general bonds to indemnify or save harmless, appears to me inapplicable. The present is not technically a bond to indemnify. Where the condition of the bond is to save harmless the obligee, the obligor may well plead that lie is safe and has sustained no damage; for if so, there is no breach of the condition, and the bond is not forfeited. But here, if Allen has walked out of the bounds of the prison, there is a forfeiture, and an action may be maintained by either the sheriff, or the plaintiff at whose suit, he was in custody. The amount-, in either case recoverable, is not now properly the subject of consideration. In the case of Howard v. Blackford, Penn. 777, Justice Pennington said, iC It appears to me that we cannot consider our act as merely providing an indemnity to the sheriff but as furnishing a remedy to the plaintiff.” And speaking of an escape, and the remedy for it, at common law, C 0. J. Kirkpatrick said, “ It was not necessary that there should have been an actual recovery against the sheriff, to entitle him to his action against the defendant. His action was grounded upon his liability and therefore he might pursue it as well before as after a recovery against himself.” — 18 — We are referred by the counsel on both sides to the decisions in the courts of New York, on bonds of this nature. They are, however, to be regarded with caution, on. account of the numerous and peculiar regulations to which these bonds are subjected by the statutes of that state. Among other things it was there enacted that such bonds are to be for the indemnity of the sheriffs only. Yet in Woods v. Rowan & Coon, 5 John. 42, on demurrer to a plea of non damnifeatus in an action on a bond for the limits, it was held that the plea could not be supported. And in M'Intyre v. Woods, 5 John. 357, the court stayed an execution against the sheriff on a judgment for an escape, to give him an opportunity to collect the money on the bond taken for the jail liberties, which by statute the court was authorized to do, and which they intimated they had power to do prior to the statute. Neither the court nor the legislature then, appear to have deemed a payment of the money by the sheriff, a preliminary, either in.law or policy, to his recovery on the bond. The counsel of the defendants urges that the sheriff ought not to be allowed to take advantage of the escape, as the plaintiff may not think proper to do so; and that if the plaintiff should *proceed against the person or property of the defendant instead of against the sheriff, a recovery on the bond would be to the latter a source of profit. In such way I think no evil need be feared, as the suit and execution of the sheriff will be at all times under the control' of the court, who will see that neither is perverted to an unjust purpose. More serious hardship would be imposed on the sheriff by withholding him from an action on the bond until the plaintiff thought fit to sue him for an escape, in which time, the security though originally good, might, often times become, entirely worthless. The mode proposed in argument for the protection of the sheriff, in case of delay on the part of the plaintiff, by the tender to the latter of an assignment of the bond cannot be supported. — 19 — The fourth plea is, that the bond was required and taken by the sheriff, by color and undor pretence of the act of the legislature, for ease and favor to the said Daniel K. Allen, of his imprisonment by the sheriff shewn, and to have and obtain his liberty to walk within the bounds of the prison. The principal question here to be examined is whether the condition of the bond is conformable to the act; such condition as the sheriff was thereby authorized and required to take ; for if so, that it was done by color and under pretence of the act, may help, but not vitiate it. The ease and favor shewn to the defendant and the liberty given to walk within the bounds of the prison, if done in the manner prescribed by law, were not reprehensible. The bond is conformable to the statute, if substantially though not verbally the same. The rule has been so settled since Beaufage’s ease, 10 Co. 99. If there is a verbal difference from the form prescribed by the statute, but none in substance and effect, the bond is good. The form to be strictly pursued is not what Lord Coke calls “forma verbalis,” which stands on the letters and syllables of the act, but the “forma legalis,” which according to him “ is the/orina essentialis, and stands upon the substance of the thing to be done and upon the sense of the statute.” This test of conformity is recognized in Nottingham v. Giles, Penn. 120; in Middleton v. M’Cormick, Penn. 500; and in Sullivan v. Alexander, 19 John. 233. The condition directed by the statute is, “ that he will keep *within the said bounds.” In the present bond, it is said, that he will keep within the bounds of the prison, and not walk off' or depart the same, unless he be discharged by due course of law.” How if these latter words bo a substantial variance, or contain any new or additional stipulation not in substance comprised in the words of the statute, the bond is wrong. But the statute says, “ and if he walk out of the said bounds, the said bond shall be forfeited.” ITence it appears that to say in the ‘ bond he shall not walk — 20 — off the same,’ is to add nothing to what, the act itself shews, is meant by and comprehended within the words of the condition for which it provides. If he “ keep within the bounds ” he will not “ depart the same.” If he depart, he will not keep within. Tf he do not keep within he will depart. The statute prescribes no time that he shall keep within the bounds. “Until discharged by due course of law,” must, without doubt, be taken to be, the time intended by the legislature. Hence I can discern no difference “ in substance and effect,” between what is prescribed and what has actually been done. The defendants’ counsel, correctly stating the rule that upon demurrer to pleadings, judgment is to be given against the party who commits the first error, questions- the decía-, ration for want of an averment that the prisoner departed the limits without the consent of the sheriff, or of the plain- • tiff in the execution. The breach is assigned according to the sense'and substance of. the condition, and is therefore sufficient. 1 Chit. pl. 326; Smith v. Jansen, 8 John. 114. In Rositer v. Downes, 4 Conn. Rep. 293, cited by the counsel of the defendants, there is an averment that the prisoner unlawfully departed without the knowledge or consent of the plaintiff or the creditor; but the case did not directly or indirectly turn on the averment; nor is there a-ny thing in the opinion delivered to shew that the court deemed such averment requisite or indispensable. Upon each of the demurrers in this cause, judgment should, in my opinion, be rendered for the plaintiff. The motion to strike out certain notices subjoined to the plea of the general issue remains to be considered. By one of the notices, the defendants propose to give in evidence that the plaintiff hath not sustained any damage or been obliged to pay any money, as is mentioned in the ^ third plea; and *by another notice that the bond was given for ease and favor, as in the fourth plea. It is not lawful for a dbfendant to avail himself of the same matters — 21 — by wav of special plea and of notice under the general issue. If he attempts to do so, he will be required to make his election, by which he will abide. These points have been repeatedly ruled. State Bank v. Chetwood, 3 Halst. 24; Brocaw v. Marlat; ibid. 89. But as we hold the pleas to be insufficient, the election would be of no avail and the notices should be struck out. The other notice which the plaintiff has moved to strike out is, in substance, that after the bond was made on which this suit was brought, an agreement was made between Allen and Olark, the creditor, at whose suit he was in confinement, by which Allen was to give Clark certain promissory notes, and a small sum of money, and the latter was to satisfy all judgments in his name against the former, and to discharge him from imprisonment under the capias ad satisfaciendwri, mentioned in the bond, and to release him and his sureties from the bond; that in pursuance of the agreement Allen did give to Clark the notes and the money ; and that Clark afterwards in fulfillment of the agreement, discharged Allen from his imprisonment under the said writ and released him and his sureties from the said bond; and that by reason thereof he walked out of and departed the rules and bounds of the prison ; and which is the same supposed breach mentioned in the declaration. The notice is much in detail and has mingled with the matters thus stated, sundry others falling far below them in legal operation and effect. As to these, it may be said, utile per inutile non vitiatwr. Wbat is just mentioned, all of which is expressly stated in the notice, seems to me to form a prima facie defence against this action. Whether true and susceptible of proof, or how effectively it may bo encountered and repelled by other proof, we are not now to consider. The notice to strike out is in the nature of a demurrer. In Sweet v. Palmer, 16 John. 181, the defendants gave in evidence under a notice, a certificate from the creditor that lie had agreed to let the defendant go at large from the limits — 22 — of the jail. The court said, “ a previous consent of the creditor that the debtor may go off the liberties, will excuse the escape and discharge the judgment.” Powers v. Wilson, 7 Cowen 276; Poucher v. Holley, 3 Wendell 184. The plaintiff’s counsel insists that this notice only sets up an agreement between the parties to settle, never executed, and but a tender of the defendant to fulfill on his part; all in fieri; a disputed settlement. If such be the extent of the evidence we may anticipate a failure of the defence. But such is not the representation of the defendants in this notice. They say indeed that Allen did tender and offer, but they say further that he did give the notes and money to Clark; they say indeed that Clark agreed to discharge Allen from imprisonment, but they say further that he did discharge him and released him and his sureties from the bond. The plaintiff’s counsel ask how is the sheriff to defend himself on this state of facts if sued for an escape. If the proof of these factsois not within his reach, and he thinks his safety requires it, he may stay the present action until sued for an escape, and then give notice to Allen and his sureties, and call on them to defend. If judgment is rendered in his favor, he is safe. If against him, the record of the judgment will furnish very material evidence on the trial of this action. Kip v. Brigham, 6 John. 158; Ibid 7 John. 168. The motion to strike out the last mentioned notice ought not in my' opinion to prevail. Drake, J. This action is brought by the sheriff of Essex, against Allen and his sureties, upon a bond for the prison limits. The sheriff has not paid the money, nor even been prosecuted for it; and the defendants plead non damnifieatus. ( To which plea there is a demurrer. The defendants insist that this is a mere indemnifying bond, and that the sheriff must have paid the money, or have been otherwise subjected to damage, before he can recover. — 23 — Ill support of this position, several authorities are cited from the New York reports, beginning with that contained in 2 John. Ga. 208 ; which was a case of a prisoner walking off the limits, and retnrning immediately, and before suit brought. The court say that the sheriff “ has not been, and cannot be damnified, by the alleged escape,” and of course he ought not to recover. Most of the other cases cited are of the same description, in which the sheriff not merely had not yet sustained actual loss, but where the circumstances would effectually shield him from any recovery on *the part of the plaintiff in execution. The doctrine of those cases is recognized by the majority of our own Supreme Court in the case of Howard of Fitch v. Blackford and others, 2 Penn. 788. Yet that case fully sustains the pretensions of the plaintiff in this, that is to say, that actual damage is not necessary to be suffered in order to sustain this action ; that liability to it is sufficient. In 10 John. 573, it is said that “ the condition is undoubtedly broken when a prisoner voluntarily and advisedly goes beyond the limits.” To the same effect are 5 John. 42 and 14 John. 177. And the legislature of New Jersey have provided, by statute, that if the prisoner voluntarily walk over the limits, although he may return before suit brought, his bond shall be forfeited, and the sheriff, or his assignee, may recover. I am therefore of opinion that the demurrer is well taken to this plea. The next question arises under the fourth plea, which alleges that the bond was taken by the sheriff under color of the act, and for ease and favor of the prisoner, and that it is void in law. It is no doubt a general rule, that if' an officer, taking advantage of the situation of a prisoner, under color of official authority, extort a bond, either wholly unprovided for by law, or with conditions not authorized, and especially if those conditions are more disadvantageous to the prisoner than the legal ones would be, it is void. 1 Penn. 118, 500; 2 Term Rep. 569; 7 John. 159. But, “ a mere verbal — 24 — difference, or departure from the provisions of the statute, will not render a bond to the sheriff void.” When there is a substantial difference it is otherwise. Now, the condition prescribed by the statute is, that the defendant “ shall keep within the bounds of the prison, &c.” Whereas, in the bond it is added, “ and not walk off or depart from the same until he be-discharged by due course of law.”' The first part of this addition merely reiterates the idea expressed in the act. To keep within the limits, and to not walk off or'depart from them, are expressions presenting the same idea. And the latter part of the addition, ■ “ until discharged by due course of law,” adds nothing to the obligation. It merely qualifies it; and, in a particular, too, in which the law would interpose, and give the same construction to the condition if it were not expressed in words. Shall keep within the limits could never be construed by any *court to mean perpetual imprisonment. I think this plea'cannot be maintained. And lastly, it is alleged by the notice attached to the plea, that a compromise took place between the plaintiff in execution an.d the debtor, and that the plaintiff agreed to-accept from the debtor a certain sum of money, and certain promissory notes, in full satisfaction of the judgment and execution; that the said notes and money were offered and tendered to him accordingly ;• and that the plaintiff, in fulfillment of said agreement on his part, “ discharged the said Daniel K. Allen from his imprisonment under the said writ of capias ad satisfaciendum as aforesaid, and released him and his said sureties from the said bond so made and given to the said plaintiff as aforesaid.” If the matter contained in this notice would be sufficient to protect the sheriff from the plaintiff’s claim against Kim for an escape, it .is sufficient to defend the debtor and his sureties in this action ; for there can be no propriety in suffering the sheriff to recover unless he must account over; and the law would not oblige him to account over to a — 25 — creditor with whom the debtor had already made accord and satisfaction for his debt; or who had, for any reason, regularly discharged him from execution. The notice sets up a release of the bond by the creditor, but as it was not made, or assigned to him, I do not see how this could be done, so as in itself, that is, by the mere force of the release, to operate a discharge of the bond. And the circumstances set out are very inconclusive. They do not disclose a case of satisfaction, but merely suggest a parol agreement, and an offer to perform, without acceptance on the other part. But the notice adds, that the creditor actually discharged Allen from his imprisonment. It does not say that the judgment was cancelled or the execution discharged. But it certainly amounts to this, that Allen had the permission of the plaintiff to leave the limits, and went off accordingly. Now, although I could have wished that this matter had been stated more distinctly, especially as the sheriff may want to use it for his defence; yet I do not feel at liberty to treat it as so totally insufficient as to justify an order to strike it out. Justice Fokd, concurred. *Judgment for plaintiff on the demurrers, and first notice ordered to be striken out. Motion to strike out the second notice overruled.