Nov, 1803.

Given

V.

Driggs.

plaintiff cannot depart from the condition, and in order to NEW-YORK, maintain his action, he must do fo, let the verdict be as it will, the court will not grant a new trial. For, fuppofe it was done, and a verdict for the plaintiff, a motion would be made in arrest of judgment for the variance; and as it appears on the face of the record, that the condition is for the fheriff's doing his duty, it is illegal, and the fuit not to be maintained. Either of thefe reafons would be fatal, and both are certainly enough to warrant the refusal of a new trial. The second objection, stated in the rejoinder, still remains unanswered. The defendant was to be anfwerable only after due proceedings had against the plaintiff by reason of the aforefaid taking. These words preclude every idea of a default. The condition contemplates a payment after a trial bad between the parties. Against all that is advanced on behalf of the defendant, it is urged, that if a party taken on execution, efcape, and afterwards a voluntary bond be given to indemnify, it would not be within the purview of the act. But this is not such a cafe. There were conversations at the time of taking, refpecting an indemnification, and an agreement, that George Driggs fhould be forthcoming. The whole teftimony evinces this. Yet, were it otherwise, the law will not bear out the position of the other fide. 4 Bac. Abr. 464. is exprefs, that if a party be taken, efcape, return, and give bond to indemnify, it is void by the ftatute and common lawt. On the point of fraud, the jury were the proper judges; it was fubmitted to them by His honor who tried the cause, and they have determined. The cafes cited en on a ca. fa. apply to tranfactions between the parties, and not to thofe rity does not between the fheriff and a ftranger. It is relied on, that under 80 quite fo far. no circumstances does this bond afford a ground for action, being void and a nullity in itself, that the condition is to indemnify against the taking, and that evidence of damage from an efcape cannot, therefore, be adduced.

Emmott in reply. We are here to argue on a question for a new trial. It is fomewhat of a novelty, that we should be called on to speak against an arreft of judgment; all we have to fhew is, that on the pleadings, the verdict is against evidence, and that we were entitled to recover. If the court

* The cafe alluded to is

Philips & Stones' cafe 2 debtor

Leon. 118. but

the

there was tak

†The autho

Nov. 1803,

Given
V.

Driggs.

NEW-YORK, will look at the bond and teftimony, they will fee it was a bond to indemnify against an escape, and not against a mere taking. The intent of parties is always to regulate in matters of contract. The intent appears from the plea; for, the defence is, that the bond was for ease and favor; which it could not be, if it was to keep harmless for taking alone. The testimony on both fides went to the point of eafe and favor, and tended to fhew it was to indemnify, after a going at large, from actions of escape, which might be brought for that which had taken place. If there had been no taking, there could have been no escape; and, therefore, the bond, tranfactions, pleadings and testimony, all fhew that it was to indemnify for an escape which had long before been permitted. This objection, on the word taking, was overruled at the trial, as the judge must recollect, though it does not now appear.

Thompson J. My recollection is confined to the cafe. Emmott. The dates stated, and before the court, will shew that the bond could not be for eafe and favor. The arreft was on the 10th or 12th of March. George Driggs was then liberated by the sheriff, and the bond not dated till the 22d of April following. Lanfing v. Fleet is in point to fhew that had George Driggs returned to the sheriff himself, he could not have been held, or confidered as a prifoner. Where then could be the ease and favor in discharging a man that was actually at liberty? For the reasons already given, a defence by the plaintiff, to the actions against him, might have been highly improper; to fhew the judgments, therefore, fraudulent, it ought to be made appear, that there was a good and legal defence, which the plaintiff neglected to make. This was afforded neither by the discharge under the infolvent act, nor by the words of Hopkins. It is wor thy of obfervation, that it does not appear George Driggs ever was difcharged, as has been afferted. Nothing of the kind was proved at the trial, and nothing appears in the cafe: but had it been otherwife, the plaintiff could not have justified under it, for he could not take upon himself to deter mine on its legality, as it might poffibly have been invalid from fraud. The only fections in the act for the relief of in

Nov. 1803.

Given

V.

Driggs.

folvent debtors, applicable to the prefent difcuffion, are the NEW-YORK, 7th, 11th, and 12th; the firft, after authorising a discharge from debts and imprisonment, goes on thus, "which dif"charge, or the record thereof, shall be sufficient authority "to the sheriff for fetting fuch prifoner at large, and the dif"charge fhall alfo be conclufive evidence in all courts, of "the facts therein contained." The fecond authorises the pleading of the general iffue. The third declares, that if the infolvent be guilty of perjury or fraud, the discharge fhall be void. Two cafes, therefore, and only two, are specifically provided for; that of an insolvent's being imprisoned at the time, when the discharge is obtained, and that of his being fubfequently arrested. In the first, he will be liberated on producing the discharge; in the second, he may plead the general issue, and give the discharge in evidence. It is a mere ftatutory release, to be taken advantage of like any other, and avoidable by proof of fraud. If, therefore, the defendant meant to infist, that it ought to have been used by the plaintiff, he should have fhewn it below, that the plaintiff might have rebutted it by proving fraud. But it never could have been availed of by the plaintiff, as the judgments on which the suits against him were founded, are in existence. When the writs of execution against George Driggs came into the plaintiff's hands, it was his duty to execute them: to obey their precepts, not to judge of their effect; his duty being purely minifterial. On this head, the law is fo ftrict, that it will not permit a fheriff to fet up a payment, without fatiffaction is entered of record. 6 Mod 27. nor a release 2 Leo. 89. It is fubmitted, therefore, that as the defence would have been useless, it could not have been intended; that the bond being given when George Driggs could not be eased nor favored, could not be for eafe and favor; and that, as no kind of fraud is imputable in the recovery on the judgments, the verdict is against law and evidence, and must, therefore, be fet afide.

Per curiam delivered by Kent J. There can be no doubt that the verdict is against evidence. The one iffue is upon the allegation, that no bond was given, and that it was for his deliverance from such cuftody. But the evidence on

Nov. 1803.

Fitch,

V.

Daniel Aicken.

NEW-YORK both fides concurs, that when the bond was given, George Driggs was not a prisoner, but at large, and had been so for Hitchcock and fome days, by the permiffion of the fheriff. The other issue is upon the allegation, that the judgments were fuffered by the plaintiff, to be entered by default fraudulently. But there is no evidence of fuch fraud, and no ground from which to infer any. A judgment by default is no prefumption of collufion, if no real defence appear, or could have been made. The verdict muft, therefore, be fet afide, unless we perceive clearly, from the cafe, that the plaintiff can ne ver sustain a fuit upon the bond, and then a new trial would be useless. A bond given to indemnify against an escape already happened, is good. The bonds, which are void under the act, as being given for ease and favor, are those given by a person in cuftody. (Dawson v. Brumer, cited in 10 Co. 100. a. Moore 542. Cafe 717. 11. Mod. 93. and 2. L. Raymond 1207. S. C. 6 Mod. 225.) There is, therefore, no rea fon to conclude, from the teftimony as it appears in the cafe, that the bond is void; and it ought at leaft to appear manifeftly, before the court could notice it under the present

A judgment

motion.

The verdict muft, therefore, be fet afide on payment cofts.

Lewis C. J. and Livingston J. abfent.

Samuel Hitchcock and Jabez G. Fitch,

against

Daniel Aicken.

THIS was an action of debt upon a judgment obtained

in the Supreme Court held at Middlebury, within and for in a fifter ftate the county of Addison, in the state of Vermont; plea nil is only prima

facie evidence debet, at the New-York sittings in November, 1803, a ver

of a debt, and

the confiderati- dict was taken for the plaintiffs for the sum of

on, therefore, examinable in Our courts.

Subject to the opinion of the court on the following cafe:

The plaintiffs commenced their fuit against the defend ant, being a citizen of this state, in the county of Middle

Nov. 1803.

Fitch.

V.

Daniel Aicken.

bury, in the state of Vermont, by attachment. They charg- NEW-YORK, ed in their declaration, that the defendant, on the tenth day of November, 1795, in confideration that the plaintiffs Hitchcock and would buy of the defendant a horfe for the fum of feven hundred and fifty dollars, promifed the plaintiffs that the horfe was found, with an averment of the payment of the money by the plaintiffs, and that the horfe was unfound. The defendant, having been fummoned, appeared by his. attorney, and pleaded in abatement of plaintiff's writ-for that the defendant is not an inhabitant of Pawlington, in the county of Dutchefs in the state of New-York, as de-fcribed by the plaintiffs in their writ, but an inhabitant of Fredericktown, in the faid county. The plaintiff's demurand afterwards the court having confidered the plea infufficient, the defendant pleaded non affumpfit; upon which a new trial was had and a verdict was found for the plaintiffs in the state of Vermont.

Upon the judgment, thus rendered by the court in Vermont, this action was brought, and it is now submitted to the court to determine-whether it was competent for the defendant to go into evidence as to the merits of the judgment obtained in Vermont: or in other words, whether this judgment is to be confidered as a foreign judgment, and only prima facie evidence of the debt; if fo, the verdict found in this caufe to be fet aside and a new trial granted; otherwife the judgment to ftand.

Thompson J. The queftion now fubmitted to the court is, whether it was competent for the defendant, on the trial,. to go into evidence as to the merits of the judgment obtained in Vermont; or, in other words, whether this judgment is to be confidered as a foreign judgment and only prima facie evidence of the debt.

This cafe was fubmitted without argument, and the only point, I conceive, prefented for confideration is, whether it was competent for the defendant on the trial, to open the judgment, and go into an inquiry into the original merits of the action tried in the state of Vermont. I fhall affume in the examination of this question as points conceded, and which I think the cafe will fully authorife me to take for