
    Harp vs. Osgood.
    Bail may surrender their principal in criminal, as well as in civil cases.
    Where bail for the appearance of a party indicted, employed a constable to arrest him with a view to his surrender, and the constable did so, but in consequence of sickness in the prisoner’s family allowed him to go at large on receiving from a third peí son a writing, promising to pay the constable $200 if the prisoner did not appear at a given term of the court in which the indictment was pending: Held, that the writing was not void as contravening public policy, nor within the statute against securities taken colore officii; and that in default of the prisoner’s appearance according to its terms, the bail might recover upon it, in the name of the constable, the damages which they had sustained, not exceeding the sum named in it
    Although a mere agent or attorney cannot, in general, sue in his own name, yet where there is an express promise to him, and his acts are subsequently ratified by his principal, the action may be in the name of the agent
    The case of Gunn v. Gantine, (10 John. Rep. 387,) referred to and explained.
    
      The law will imply an obligation on the part of the principal to indemnify his bail.
    Assumpsit, tried before Gridley, C. Judge, at the Madison circuit in March, 1840. The case was this: Charles H. Chapman was indicted for assault and battery in the general sessions of Madison county, and Abram Lee became bail for his appearance to answer the indictment. Chapman made default in appearing, being absent from the state, and in the state of Virginia. After Lee had procured the cause to be continued for several terms, he got a copy of the recognizance and delivered it to Harp, the plaintiff, and instructed him to arrest Chapman and bring him into this state for the purpose of surrendering him in discharge of Lee’s undertaking as bail. The plaintiff was a constable in this state. He proceeded to Virginia and arrested Chapman for the purpose of bringing him to this state. Chapman’s wife was in a delicate situation, and he was engaged upon a canal contract which he could not leave at that time without suffering great damage. He thereupon paid Harp the expenses of the journey to make the arrest, amounting to $100, and agreed to give security for his appearance at a future day, so as to indemnify his bail. Harp gave Chapman a receipt in Lee’s name for the $100 in full for the expenses of the journey; ■ and Chapman procured and delivered to Harp a note or agreement in writing made by the defendant in the following words: “ For value rec’d, I promise to pay to George Harp or order the sum'of two hundred dollars by the first of January next. This is provided, that Charles H. Chapman does not make his appearance at the Oct. court of Madison county, N. Y. in 1837. Amherst, May 21, 1837. (Signed) J. C. Osgood.” Chapman did not appear in pursuance of the condition. Lee procured the matter to be postponed for several terms, and was finally released from his recognizance by the court. His expenses in attending court, employing attorneys, «fee. amounted, as was agreed by the parties, to $65, which sum he claimed to recover in this action. The suit was brought upon the foregoing instrument in the name of Harp, but for the benefit of Lee. The judge decided that the plaintiff was entitled to recover the $65, and the jury found a verdict accordingly. The defendant now moved for a new trial on a case.
    
      D. Brown <Sp J. A. Spencer, for the defendant,
    made the following points : 1. The instrument is void, having been taken by the plaintiff by color of his office as a constable, and not being authorized by law. (2 R. S. 286, § 60.) 2. It is void, as being against public policy. 3. The suit should have been brought in the name of Lee. A mere agent or attorney cannot maintain a suit in his own name, although the promise is made to him. (Gunn v. Cantine, 10 John. R. 398.) 4. The agreement is void for want of consideration. Bail in criminal cases have no right to surrender their principal, as they may in civil suits.
    
      T. Jenkins, for the plaintiff.
   By the Court,

Bronson, J.

Bail may surrender their principal in criminal, as well as in civil cases, and be discharged from their recognizance. (Hawk. P. C. b. 2, c. 15, § 3, Curwood’s ed. 2 Hale’s P. C. 124, ed. 1778. 1 Chit. Cr. L. 104, Phila. ed. 1819.) Although the plaintiff was a constable in this state, he was not acting in his official capacity in making the arrest in Virginia. He went there as the mere agent or deputy of the bail; and the statute against taking securities colore officii has nothing to do with the case.

The undertaking was not void as being against public policy. Chapman was not suffered to remain in Virginia for the purpose of enabling him to escape public justice; but because it was extremely inconvenient, both on account of his family and his business, to come to this state at that time. Under such circumstances he was allowed to go at large, on procuring security that he would appear in court at a subsequent day. The power of the bail was not used oppressively for the purpose of extorting money from the principal; but for the sole purpose of securing an indemnity to the bail.

Although a mere agent or attorney cannot, in general, sue in his own name, yet where, as in this casé, there is an express promise in writing to the agent, and his acts are subsequently ratified by the principal, the action may be in the name of the agent. To hold otherwise would be to declare the contract nugatory, except where it was in the form of negotiable paper which could be transferred to the principal so as to enable him to sue in his own name. Gunn v. Cantine, (10 John. R. 387,) on which the defendant relies, was upon an implied promise; and it was admitted in that case that the attorney might have sued in his own name, if there had been an express promise to pay the money to him.

If we do not look beyond the agent to whom the promise was made, the contract will be void for want of consideration. But although the contract was made with the agent, it was intended for the benefit of Lee. He has since ratified the agreement, and is now suing in the name of the agent, but for his own benefit. As between Chapman and Lee, there was a sufficient consideration for the promise. The law will imply an obligation on the part of the principal to indemnify his bail. That was a good consideration for this undertaking.

Lee claimed to recover nothing on the note beyond an indemnity against his necessary expenses as bail, and to that sum I think he was well entitled.

New trial denied. 
      
       See on this subject, Story on Agency, 401, et seq.
      
     