NEW-YORK, Given v. Driggs. 1ft. Whether the bond in queftion was given for eafe and favor, and deliverance of the faid George Driggs, contrary to the form of the statute, and therefore void. fuch 2d. Whether the judgments aforefaid, were entered thro' fraud and deceit of the plaintiff, or were negligently and fraudulently suffered or not. The pltff. proved that judgments in the two fuits of Wendover and Hopkins, and of Dudley, were duly obtained, and executions regularly fued out against George Driggs. That he was taken upon them fome time in March 1798, by one of the deputies of the Sheriff, named Hamilton, and that, at the time of the arreft, many threatening obfervations were made, by the defendant and George Driggs, in cafe the Sheriff should detain his prisoner in cuftody, as they infifted he was not liable to be held, having lately obtained his discharge under the infolvent act; that at the same time, there was some conversation about giving a bond to try the validity of the arreft, and fecure the Sheriff, in cafe the faid George Driggs fhould ultimately be liable to the above executions; that, directions were given to one Frazer, the attorney in the suits against George Driggs, to prepare a bond; but before it was finifhed, the defendant told Frazer he need not go on, for that he [the defendant] would have nothing to do with it; that fince the arreft, Hamilton had declared he had permitted George Driggs to go at large; that George Driggs went a journey to the weftward, and the defendant faid he would fee him forthcoming in ten days; that Frazer did not confent to George Driggs' going at large, but on being asked, whether he could be regularly fet free, on fome perfon's undertaking for his return into cuftody; Frazer anfwered, fo it had been practised by others; that Driggs had been seen, after coming back from the weftward; and that Hamilton had been heard to fay, George Driggs had returned according to his agreement; that on the 23d of April 1798, the bond, on which the present action was inftituted, was drawn by Frazer, at the request of Hamilton and the defendant, when George Driggs was not prefent, and that it was executed by the defendant, at a houfe to which he and Hamilton went for that purpofe; that the arreft took place on the 10th or 12th of March preceding, Nov. 1803. Given V. Driggs. between which time, and the 23d of April following, when NEW-YORK, the bond was executed, George Driggs had been frequently feen in the streets of Loonenburgh, where he and Hamilton refided; that, previous to the execution of the bond, Jofeph Hopkins confented to its being given, and told Hamilton he would be fafe if he took it; that, at the time of its execution, the defendant faid he was not afraid of the bond, as he was pofitive his fon's discharge was good; but, that he did not with the sheriff to be hurt. The plaintiff here closed his cafe. The defendant gave in evidence, by a witness present when the arrest was made, that Hamilton agreed with George Driggs, that he might go a journey to the weftward, and that the defendant became his furety that he should return in ten or twelve days; that he did return within that time, and was delivered up by the defendant to Hamilton; that the attorney, in the caufes against George Driggs, faid the fheriff would be fafe in letting him go, if the defendant was furety for his return; that from Hamilton, it was underftood, that George Driggs was not his prifoner, at the time the bond was given. Frazer's affent to Driggs's being fet at large, was denied by Hamilton, who faid, he himself permitted Driggs to go the journey to the weftward, on condition of the defendant's undertaking for the return of Driggs, the prisoner; that he did come back, as was promised; but that Hamilton recollected no furrender of him into cuftody; that the defendant faid he was willing to give a bond to indemnify the fheriff, and, on Hopkins's confenting to the bond in question, it was executed; but that, at the time of its execution, George Driggs was abfolutely at large, and had been fo ever fince his return; nor had the fheriff exercifed any authority over him, as the deputy did not confider him in custody, in confequence of Hopkins's confent to the bond; that of fuch confent, the plaintiff, fhortly after the suits againft him were commenced, was informed, and that he had fatisfied the judgments obtained therein against him, within about five pounds. On this teftimony the jury found a verdict for the defendant. The prefent application was for a new trial. NEW-YORK, Given V. Driggs. Metcalf and Emmot for the plaintiff. The motion now made, is for a new trial, the verdict being contrary to law and evidence; and it may be added, though it does not appear in the case, contrary to the opinion of the court also. It is an action of debt on a bond of indemnity, with a condition after a recital, as follows: "The condition, therefore, "of the above obligation, is fuch, that if the faid Bartholo"mew Driggs, fhall well and truly pay, or cause to be paid, "to the faid John Given, or his affigns, all fuch fums of mo"ney, charges and damages whatsoever, as he, the faid John "Given, as fheriff, as aforefaid, fhall be obliged to pay, af❝ter due proceedings at law had against the said John Given, "and adjudged and decreed against him, the faid John Given, "or his affigns, by reason of the aforefaid taking of the a"forefaid George Driggs, on the faid writs as aforefaid, then, "and in fuch cafe, the above obligation to be void, otherwise "to be and remain in full force and virtue." To this the defendant has pleaded, that the bond was given by him to the sheriff for ease and favor. The first question is, whether the bond was fo given, and therefore void? the fecond, whether the judgments obtained against the plaintiff were deceitfully or negligently fuffered? The first point includes matter of law and matter of fact. Whether a bond to indemnify a sheriff from an escape given subsequent to an escape, and when not in cuftody, be a bond for ease and favor and therefore void by the ftatute is the queftion of law? Whether the party was then in custody or not is that of fact. By recurring to the testimony in the cafe, it will appear, that Driggs, for whose ease the bond is alleged to have been entered into, was out of cuftody long before it was executed, and the very right of taking him was questionable, as he had been discharged under the infolvent act. Against what is advanced, the agreement to let him go, on a promise to return, cannot be urged; for, though he did return, he never was in cuftody, and the liberation itself, under the agree ment, was an escape, after which the bond was given. Is then, this bond, fuch a bond, as is made void by the ftatute? It expressly refers to bonds given for deliverance, and refers If for, Nov. 1803. Given V. Driggs. * Stepney v. Loyd Cro. Ella 647. The denot fendant was illegally arrefted, and the the bond held void as obtained by durefs. + On a fi. fa. the sheriff took a bond to pay the moneyinto court atthe re cafe. + Fox v. Tilly. || A bond to be a true pri foner good. § Hacket v. to one in cuftody only. 3 Vin. Abr. 453. pl. 8. Notis* Ibid. NEW-YORK 454. pl. 13.† 19 Vin. Abr. 445. a bond given to indemnify against past escapes, is good. 6 Mod. 225.‡ which cites 2 Salk. 438. Ibid. 653. So 5 Com. Di. tit. Pleader (2 W.) 25. page 648. 11 Mod. 93.§ 5 Vin. Abr. 96. pl. 20. then, the law be fo, the first defence is entirely false; it is not a bond under the ftatute, and, therefore, is void. Had any thing been said about its being given, at time of liberating George Driggs, it might, perhaps, have been invalidated; but it was not only not then in existence, but not even contemplated. As to any fraud in the plaintiff, from suffering the judgments to be had against him, it furely will not be contended that is proved, because they turn of the went by default. There might have been no defence, and writ, and held good. To Rep. then a judgment by default was the only honeft one that 99 b. Bewfages' could be had for any other would have been dishonest, as it could have no effect but to encrease costs. There was a clear escape, and a recovery was inevitable; for, no confent to the discharge of George Driggs, was given either by Hop- Tilly, that was kins or the attorney in the fuit. None of the words made a bond from an use of imply it; they only mean, that as the plaintiff would sheriff, to indemnify abe liable to Wendover and Hopkins, he might make himself gainst efcapes. fecure by a bond and to prove that this was the true idea the parties entertained, Hopkins, as furvivor of Wendover, instantly commenced a fuit against the plaintiff. Had there been a wish to exonerate the sheriff, and permit the liberation of George Driggs, Hopkins would have taken the bond to himself. At all events, Dudley did not affent, and whatever may be urged refpecting Hopkins's judgment, it cannot apply to that by Dudley, and to neither one nor the other of the fuits, could the fheriff justify under the insolvency of George Driggss. In the cafe of Lansing v. Fleet, October 1800, in this court, it was ruled, that a return into cuftody does not purge an escape; but, that the party may go at large again when he pleases. They, therefore, relied on that authority, in addition to thofe cited, to fhew that the bond could not be for favour. Alfo 6 Mod. 27. (127) 2 Leon 89.* 1 Salk. 271. 10 Vin. Abr. 111. M. 1. Spencer contra. If it be made appear, that the plaintiff officer to the See Holt, 201. It is a citation from the year books, but, in my Nov. 103. Given v. NEW-YORK, cannot, under the present state of pleadings, recover, though a new trial fhould be granted, the court will certainly let the verdict stand. Where a jury have found against law, if fending back the cause, be, for a trifling purpose, and the damages fmall, the court will not interfere; a fortiori they that of Henry will not, if they fee no poffible use can accrue. At the trial Driggs. Leonard from the ninth. I in Henry 6th, and in Brooke, forth, the plaintiff could, under any the cafe, which by the plaintiff to his debtor who was in exécution, is no plea in an ac tion for an e cape before the releafe. have fearched it was not made a point, whether, from the condition as fet circumstances, recover but do not find for an escape. The words are, that if the plaintiff should pay, is that a releafe &c. "by reafon of the taking of the aforefaid George Driggs." To the action on the penalty of the bond there are two pleas; one to the eafe and favor, the other, that the plaintiff had not been damnified. The replication means to raife this fact, whether the bond was given after George Driggs had escaped, and to indemnify for that, or to obtain his deliverance at the moment when executed. The action is intended to recover what has been paid for an escape suffered, and not in confequence of having arrested. The defendant has engaged for nothing but for the taking; he does not fay for the fuffering to escape. This is a clear departure in pleading. The count, as appears by the condition, is for a taking, and the replication fhews damage by an escape. The question, therefore, which now arifes is, whether it be competent for the plaintiff to aver a condition which does not appear on the bond, He cannot aver any thing which is not apparent. The bond is to indemnify only against taking on the writs. If Given cannot bring himself within the condition, he has no right to bring the action. Nothing can be averred which varies the condition. 19 Vin. 447. U. pl. 2. No averrment against the condition of a bond. The contrary would overturn all legal principles of agreements, and, on which the plaintiff reforts to recover damages. If there be a recovery, it must be by parol testimony directly oppofite to the condition of the bond. With refpect to the validity of the inftrument, it is to be obferved, that it is to indemnify for taking Driggs. When the writs were put into the fheriff's hands, he was to execute them: no fecurity from a third perfon, to protect him from the confequences of doing his duty, can be good. But, admitting that it is valid, if the |