
    S. Jameison vs. S. Calhoun.
    
    Í. Land, was rented for one year, and after the tenant had entered on the second term, the rent in arrear being paid, the landlord issued a distress warrant, which, after his death, was executed by the plaintiff, a constable, at the instance of the landlord’s administrator, the defendant, who verbally undertook to indemnify him. The tenant sued the officer for a trespass, and recovered, the administrator, upon notice, defending the suit. In an action brought against the administrator on his promise of indemnity, it Was Aeid-that the plaintiff was entitled to recover, as it did not appear from the evidence that he waá guilty of a Wilful trespass, or that he had any other design than to levy the rent due to the landlord.
    2. 'The faút that plaintiff knew that some of the goods sold were exempt from the distress warrant, under the Act of 1823, (6 Stat. at Large, 214,) not material, as the tenant assented to the sale, and did not claim the exemption.
    3. It seems that in all the cases, to avoid the obligation of indemnity, the object and design of the parties must be to commit a trespass, or to do some other unlawful act.
    
      Before O’Neall, J. at Laurens, Extra Term, July, 1843.
    This was an action of assumpsit, on a verbal contract, to indemnify the plaintiff in executing a landlord’s warrant, by the levy and sale of Berkley Bagwell’s property.
    It appeared that Bagwell, in the life time of James Kin-man, had rented from him a tract of land for one year, and had entered upon the second term. From the proof, it seemed that the rent arrear was fully paid. Yet Kinman, in his lifetime, issued his warrant, and perhaps placed it in the plaintiff’s hands. At the instance of the defendant, who was Kinman’s administrator, the plaintiff levied on Bagwell’s property. The defendant wrote the advertisement, was present at the appraisement, and promised the plaintiff to indemnify him in selling. He accordingly sold. It appeared that Jameison kriew it was illegal to sell. Bag-well sued him ; notice of the suit was given to the defendant, who attended to the case, employed counsel, and defended it. It was held that the whole proceedings under the landlord’s warrant were illegal, and Bagwell recovered against this plaintiff $345 14, damages and costs¡
    
      The record of Bagwell vs. Jameison was offered and received in evidence. The jury found for the plaintiff.
    The defendant appealed, and moved for a non-suit, on ■ the following ground:
    Because the promise to indemnify was founded on an illegal act, and was void.
    There were several other grounds, both for a non-suit and a new trial, but not being insisted on in the argument, nor considered by the court, they are omitted.
    
      Sullivan, for the motion,
    contended that there was no sufficient consideration for defendant’s undertaking. Jameison must be presumed to have known the law, and acted under what was equivalent to void process. Cited 1 Bailey, 588; 1 Bacon Ab. Assumpsit, (E) 224 ; 3 Hill, 170.
    
      Irby, contra.
   Curia, per

Evans, J.

If one man promise another to indemnify him for committing a crime, a misdemeanor, or a wilful trespass, such promise is void; but this has never been supposed to extend to cases where the alleged trespass has been committed in the prosecution of a legal right, unless the legal right be merely pretensive. Thus in the base of Davis vs. Arledge, 3 Hill, 170, the promise was to indemnify the plaintiff for levying a distress warrant on a merchant’s books of account, which was unlawful; yet as there was no wilful trespass, the promise was held good, although the act was unlawful. If a sheriff be indemnified to sell the goods of A, under a Ji.fa. against B, the indemnity would be good.

But if this was a corrupt agreement to do what both parties knew to be a trespass, then, I apprehend, the promise would be void. In such case, both parties would be equally criminal, and the law will not lend its aid to enforce a contract in favor of one who had contracted about a violation of his duty to society; and hence it is laid down in all the cases, if one knows the act to be unlawful, the promise of indemnity is void. It is said this case comes within that principle, as the presiding Judge reports “that Jameison knew it was illegal to sell.” This knowledge, I understand from him, consisted in this, that some of the goods .sold were exempt from the distress warrant by the Act of 1823, 6 Stat. 214.

In referring to the case of Bagwell vs. Jameison, reported in Cheves Rep. 250, (which was defended by Calhoun,) it appears that Bagwell was assenting to the sale. Now, by the Act of 1823, certain articles of property are exempt from levy and sale, but if no one claims the exemption, I do not see why they may not be sold. It is very difficult to lay down, with precision, any iule to govern in all cases, but I am inclined to think, that in all, to avoid the obligation of indemnity, the object and design of the parties must be to commit a trespass, or to do some other unlawful act. So far as I can ascertain from the evidence, Jameison had no other design than to levy the rent due to Kinman, and if so, Calhoun’s promise of indemnity was not void, and the verdict of the jury enforcing his promise must stand. The other grounds were hardly insisted on in the argument. I do not think the questions made therein are doubtful. The motion is dismissed.

Richarbson, O’Neall, Butler and Warblaw, JJ. concurred.  