
    Andrew Morse versus Isaac Hodsdon and Three Others.
    If the officer to whom a writ of replevin is directed and delivered, take from the plaintiff a bond not conformed to the requisition of the statute, which is voluntarily executed by the plaintiff, he shall not avoid it on that account.
    Where goods attached by the sheriff on four writs are replevied from his possession, by as many writs of replevin, sued by the same party, on each of which a bond is given to the sheriff, and he puts them all in suit, he shall have costs in each action.
    Debt on bond. Upon oyer had, the following appeared to be the conditions, viz. “ The conditions of this obligation are [ *315 ] such that whereas Isaac Hodsdon has * this day, by virtue of a writ of replevin, purchased out of the clerk’s office of the Court of Common Pleas for the county of Hancock, and directed to the coroner of said county, replevied sundry goods, wares and merchandise as mentioned in the schedule annexed to the writ, of the value of one hundred and sixty-four dollars and forty-three cents, which goods were attached by the said Andrew Morse, a deputy sheriff, at the suit of Richard Pike, merchant, as the goods of one Moses Hodsdon. Now, if said Isaac shall prosecute his said replevin to final judgment, and recover the said goods on final judgment, then this obligation to be null and void, otherwise to remain in full force and virtue.”
    The defendants then plead in bar, that the said Isaac sued out a writ of replevin in due form of law against the plaintiff to replevy sundry goods, wáres and merchandise, which had been attached as set forth in the condition of the bond; which writ was directed and delivered to a coroner to execute, who required the defendants to execute the said bond ; that they accordingly executed it; that the coroner returned it together with the writ, and that the said conditions are contrary to the directions of the writ.
    To this plea the plaintiff demurs generally, and the defendants join in demurrer.
    
      Mellen, in support of the demurrer.
    Though the bond does not pursue the form prescribed, yet as it was voluntarily executed by the defendants, it is fat them to show it void as against law, or that the condition has been fulfilled. It is enough for the plaintiff to say that there is nothing illegal in the condition, and that no performance or discharge is pleaded. If the condition is insensible or uncertain, it is void, and the bond remains single and in force . It may be true that if the plaintiff in replevin be sued for taking the goods, *he cannot justify, unless he gave such [ * 316 ] a bond as the law requires; but that is not the case here; and as he has obtained possession of the goods by means of this bond, he ought not to be received to say that he got them on illegal security .
    
      Wilde, for the defendants
    argued that it appeared from the plea that they were compelled to execute this bond, or to fail of obtaining their goods. It was oppressive to require of us a bond, which we must forfeit absolutely, if by any means, we should fail of obtaining a judgment in our favor. The law prescribes a bond, conditioned only, in the worst event, that we should return the goods, and pay the damages and costs. If the officer is justified in departing from the statute thus far, it is not easy to fix the limits of his oppression. A bond for the performance of malum prohibitum is void by law, and so should be a bond taken by color of office, in a form and for a thing not authorized by law, especially where the law has prescribed the form.
    
      
       2 Black. Com. 340.
    
    
      
      
        Bartlett vs. Willis & al. 3 Mass. Rep. 86. — Flagg vs. Tyler, Ibid. 303. — Moors vs. Parker & al. Ibid. 310.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

As the defendants have neither pleaded performance of the condition, nor any excuse for not performing it, the plain tiff must have judgment, unless from the facts disclosed in the plea, or appearing on the face of the bond, it is void in law.

The statute directing the form of the writ of replevin enjoins the officer to replevy the goods — provided the plaintiff in replevin give him a bond with the condition there prescribed, which bond he is to take in the name of the defendant in replevin, and return it with his writ when executed. The condition there provided is, that the plaintiff in replevin prosecute, and also make return and pc/ the damages, if judgment be against him. Without a bond [*317] of this form, the officer may be sued as a * trespasser for taking the goods from the defendant in replevin, if he choose to consider him in that light, because the injunction of the writ is on a condition not performed by the plaintiff in replevin. Or if the plaintiff in replevin tender to the officer a sufficient bond in due form, and the officer refuse to receive it and to execute the writ, he is answerable to the plaintiff in replevin, in an action of the case for damages. But if the plaintiff execute an informal bond voluntarily, and to obtain possession of the goods, and the officer thereupon deliver him the goods, the defendant in replevin may, if he please, accept the bond, and pursue a remedy at law upon it against the obligors, unless the bond be void by the common law or by statute. Bonds for ease and favor are void here by our common law, which is founded on an English statute in force before the settlement of this country. But a bond for ease and favor is given to an officer having the custody of the body to obtain an indulgence not authorized by law. This therefore is no bond for ease and favor. Bonds given to an officer, to indemnify him for a breach of his duty, are likewise void at law. But this is not a bond within this description. Indeed we do not recognize any principle of the common law, by which the bond in this case is void at law. If it be void, it must be so in consequence of the statute directing the form of the writ of replevin. True it is, that the condition in this case is variant from the form there directed; but that statute does not prohibit the taking a bond of any other form, or declare a bond of any other form void.

The defendants have urged that the officer required this bond, which was more inconvenient to them than a bond having a con dhion conformed to the act.

They were not obliged to give this bond; and if a formal bond had been tendered to the officer, he must have executed the writ, or have been answerable for all the damages sustained by the plaintiff through his neglect * or refusal. And be- [*318] sides, as the defendants are by statute entitled to be relieved against the penalty, on payment of the just damages, this bond is not more prejudicial to them, than one with a condition in due form would have been.

But if the bond be adjudged void, the consequences to the plain tiff will be mischievous. The plaintiff in replevin, under color of it, has obtained possession of the goods, of which the present plaintiff has been deprived, who will have no remedy but an action against the officer, which in many cases may be very inadequate. And it would be unreasonable to allow the defendants to dispute the bond voluntarily executed by them, after their principal had had the full benefit of it as a legal deed.

But without regarding the inconveniences that may result to either party, the bond must be good, unless it be declared void by the common or statute law; and we know of no law by which it is made void.

The plea in bar is bad and insufficient .

There being pending three other actions sued by the plaintiff against the defendants on three other replevin bonds, which were to follow the judgment in this action, the defendants, under the twelfth section of the statute of 1784, c. 28., moved that the plaintiff might be allowed to tax but one bill of costs.

But it appearing that the plaintiff, as a deputy sheriff, had attach ed the goods replevied on each writ at the suit of several persons, the Court were of opinion that he might tax the costs in each ac tian. For, by the statute of replevin, each bond was given to him in trust for the attaching creditors respectively, and that he must be considered as prosecuting in the several rights of others, which he ought to keep distinct, that the several remedies may not be confounded or blended in one judgment. 
      
      
         Dunbar vs. Dunn, 10 Price, 54. — Austen vs. Howard, 7 Taunt. 28. — 2 Marsh, 359. — 1 Moore, 68.
     