
    [Pittsburg,
    September 18, 1827.]
    HOLDSHIP against JAUDON.
    IN ERROR.
    If one in custody on a ctz. sa. give a bond to the plaintiff, conditioned for bis surrender on or before a certain day, such bond is good.
    If the condition of a bond be to do a thing against a maxim or rule of .law, and not malum in se, the bond is single.
    Error to the Court of Common Pleas of Allegheny county, in a suit brought by William L. Jaudon, the defendant in error and plaintiff below, against Henry Holdship and Jonathan H. Lamb-din, the plaintiffs in error.
    
      Lambdin being in custody of the Marshal of the United States for the western district of Pennsylvania, by virtue óf a capias ad satisfaciendum issued at the plaintiff’s suit, on the 13th of October, 1823, gave a bond to the plaintiff, on which this action was brought, in which Holdship joined as surety, conditioned that Lambdin should surrender himself to prison, on or before the 3d of November following, whereupon the marshal discharged him from custody. He was not afterwards surrendered. On the loth of November, 1823, he was put in jail on a ca. sa., at the suit of William Brown and sons, and remained there till he was discharged under the act of congress; no mention being made of the ca. sa. at the suit of the plaintiff. Lambdin died before the trial.
    The suit was debt on the bond. Thepleas nil debet, with leave, &c., and performance.
    The defendant, Holdship, gave evidence, to which the plaintiff demurred; and the court below gave judgment for the plaintiff.
    
      Forward, for the plaintiff in error.
    The only question is whether the consideration of this bond is legal. We say it is not. Yelv. 197. Com. Contr. 30. Strong v. Tompkins, 8 Johns. 98. It was a breach of duty in the sheriff to take this bond. Here the taking the bond was the act of the sheriff It was void originally: no ratification by the plaintiff can set it up. The consideration of the bond was an escape.
    
      Fetterman, contra,
    cited Leach v. Davis, Alleyn, 58. 2 Mod. 304. Hall v. Carter, 7 Mass. 98. Clap’s Administrator v. Coffrand, Ib. 200. Burrows v. Louder, 8 Mass. 373. But, if the condition were unlawful at the time of making the bond, it is single. Co. Lit. 206, b.
    
    
      Forward, in reply.
    The court will not follow the distinctions of Lord Coke at this day. The penalty formerly became the debt; now, chancery looks to the real nature of the contract. In Mit
      
      chell v. Smith, 4 Dall. 269, a single bill was held void, because the contract contravened the laws of the stale.
   The opinion of the court was delivered by

Rogers, J.

If we confine ourselves to the points raised by the pleadings, we can have but little difficulty in deciding this cause. The defendant gives evidence to support the pleas of nil debet and performance; to which evidence the plaintiff demurs. On this demurrer to the evidence of the defendant, the court are required to examine the validity of the bond on which suit is brought. This cannot be done, for the only matter submitted to the court, is, whether the evidence sustains the defendant’s pleas, and, as it is conceded that it does not, there would, (if we should stop here,) be an end'of the question. Waiving, however, all matters of form, which seems to be the wish of the plaintiff and defendant, we will consider the point intended to be raised on this record. Is the bond declared on such an instrument as will sustain the plaintiff’s action? I do not consider this a bond for ease and favour. Bonds of that description are void; but they are given, not to the creditor, but to the sheriff, to obtain from him a favour and indulgence, to which the debtor is not legally entitled. 7 Mass. R. 101. Alleyn R. 58. 2 Mod. 304. 7 Mass. R. 98. 8 Mass. R. 373. 11 Johns. R. 27. The plaintiff himself may enter into a composition with his debtor. There is no rule of policy which prevents it; and such agreements are frequently for the advantage of debtor and creditor. This was an agreement in the name of the plaintiff) with the assent of his attorney, and since ratified by the plaintiff himself.

The defendant, Lambdin, was in the custody of the marshal when the bond was signed, with the condition that Lambdin should surrender himself to prison on the ca. sa., on or before the 3d of November. It is said that the surety could not surrender his principal, nor could he surrender himself, so as to be entitled to a discharge under the acts of congress, for the relief of insolvent debtors; that the jailer could not receive and hold him, without rendering himself liable to an action. Plowever this may be, it merely goes to show that the condition of the bond is contrary to a maxim or rule in law. In 2 Co. Lit. 27, title, Estates upon Condition, the rule is distinctly laid down which I conceive governs this case.

It is commonly holden, that if the condition of a bond, &c., be against law, that the bond itself is void.

But herein the law distinguisheth between a condition against law, (that concerneth not any thing that is malum in se,') but, therefore is against law, because it is repugnant to the estate, or against some maxim or rule in law.

If a condition of an obligation be, to do a thing which is ma lum in se, the condition, and also the obligation is void; as, if an obligation be with condition to kill another, Co. Lit. 266, b. 3 Com. Dig. 98.

But if the condition of an obligation, &c., be only to do a thing contrary to a maxim of law, or repugnant to the nature of the grant or estate, the obligation is good. 3 Com. Dig. 98.

In the first case the obligation is void; in the last, which is the cause before the court, it is single.

Judgment affirmed.  