
    John B. Bayless vs. The Trustees of the Belmont Bank of St. Clairsville.
    A bond filed, in a case in error, must be filed before the Supreme Court obtains complete jurisdiction of the writ of error, or it is too late to operate as a supersedeas, and is invalid, either as a common law or statutory bond.
    This is a Writ of Error directed to the Court of Common Pleas of Belmont County.
    The questions presented for the consideration of the Court appear from the following statement:
    On the 15th of March, 1342, the Bank sued out a summons against Redick McKee, John F. Clarke, William B. Tyson, George Dulty, Charles D. Knox, John Richie, Alfred W. Woods and John B. Bayless.
    This summons was returned served only as to Bayless and Woods, against whom, at the March term, 1842, the Bank filed its declaration.
    
      In Bank.
    Dec. Term, 1846.
    The declaration counts on a penal bond for the sum of $24,000, dated the 22d March, 1841.
    In October, 1840, the Bank had recovered a judgment against McKee for near $12,000, and on the 31st October, 1840, McKee sued out a writ of error on that judgment; the citation and notice, required by the statute, were waived by the Bank, and the case was reserved to the Court in Bank. Pending this, in March, 1841, the Bank arrested McKee on a ca. sa. and put him into the county jail. While matters thus stood, the bond, on which the judgment which is sought to be reversed in this suit, was made. It is, in form, a supersedeas bond.
    At the December term of the Court in Bank, for 1841, the Court affirmed the judgment against McKee, on division. This suit, was then brought on the supersedeas bond, and judgment was recovered in favor of the Bank; a writ of error was sued out, and the judgment reversed ; the case was sent back again to the Court of Common Pleas. In the mean time, Woods had become a certified bankrupt, and pleaded this matter, and was discharged.
    Bayless craved oyer of the bond and the condition, and pleaded that the same had been obtained of him without consideration. To this plea, a general replication was filed, with an agreement of the parties, that every thing which could be given in evidence, under any special plea and replication proper in the case, should be received and given in evidence under that state of pleading, and the agreement should be made a part of the record. This was on the 20th March, 1844.
    At the March term, 1844, the case was submitted to a jury, and, during the progress of the trial, Bayless, the then defendant, tendered two bills of exceptions, which were sealed by the Court, and which fully show all the evidence in the case.
    The first bill shows, that the Bank read the bond, the record in the case of the Bank against McKee, and the suit in error in that case, the reservation of the same to the Court in Bank, the judgment of affirmance, and the mandates, and then rested.
    
      Bayless then read, in evidence, the writ of error dated and issued on the 31st October, 1840, and an indorsement on the back thereof in the handwriting of John C. Tallman, the clerk of the Supreme Court, except the signature of Mr. Cowen, which he put to it himself:
    “ I agree to appear, and do hereby appear for the President, £ Directors and Company of the Belmont Bank of St. Clairs- £ ville, the defendants in error, and waive their issuing and ser- ‘ vice of notice and citation.
    f£ 31st October, 1840.
    ££ B. S. Cowen, Attorney for Plaintiffs below.”
    The defendant then rested.
    The Bank then offered, in evidence, the original papers of an application of the said McKee to Hugh Rogers, an associate judge, for a habeas corpus, dated 13th of August, 1841, the writ and the return of Isaac Vail, the sheriff, and the execution under which he claimed to hold McKee in custody. The return is, that he held McKee in custody by virtue of a ca. sa. issued in the case of the said Bank against him, and another ca. sa. in the case of Robert Thompson against him, both dated and issued on the 2d of March, 1841, and the return of the sheriff on the ca. sá. This last return was, that he ££ served ‘ this writ by taking the body of the said McKee and commit- £ ting him to the jail of the within named county, on the 2d of £ March, 1841, and by reason of the insufficiency of said jail ‘ he made his escape therefrom some time in the night of the £ 7th April, 1841, and I have used the utmost vigilance in my £ power to take him, but, as his lurking place is in Virginia, I £ I have not as yet been able to accomplish that object.
    ££ Isaac Vail, Sheriff.”
    And, also, the discharge of the said McKee by the said Rogers, who decided the same bond to be a supersedeas to the execution, to all of which the said Bayless objected, as being incompetent; which objection was overruled and the papers were read in evidence, to which the said Bayless excepted. It was also proved, that the Bank had no agency in the habeas corpus proceedings, as a consideration for the bond or otherwise.
    A witness was suffered to prove, that Bayless was present at the time McKee was discharged, and that he did not object; to all of which evidence Bayless objected.
    This was all of the testimony that was given in the case.
    The said Bayless then moved the Court to instruct the jury:
    First: That the penal bond so declared on was not a good bond at the common law, for the reason that the plaintiff had no right, by its charter, to take a bond for any other purpose than for money lent, or for the security of a debt, or for property sold, and for the reason that the bank did not accept the bond for any other purpose than as a statutory bond.
    Second: That the obligation accrued against Bayless by the sealing and delivery of the said bond to the said clerk, and by his approval thereof, and not by any subsequent act to be performed by Bayless or any one else, and that if he was bound by, and liable for, on the same when it was to be delivered and approved by the clerk, he was not liable at any other time and is not now liable.
    Third : That after Bayless had delivered the bond to the clerk, that he had no control over it, nor had he any control over McKee on the habeas corpus proceedings, for no one could deprive McKee of that right; and that the said McKee or Rogers had no power to contract or enlarge the liability of Bayless on the bond, by any proceeding to which he was not a party.
    Fourth: That the Bank had no right to prosecute the writ, by and for the reason that its charter had expired.
    The Court refused to give those instructions, so prayed for by the said Bayless, in charge to the jury, and each part thereof; but, on the motion of the plaintiff in that suit, instructed the jury that the discharge of McKee on the habeas corpus proceedings having been obtained by McKee on the day of the execution of the bond, was a sufficient consideration for the bond, so far as McKee was concerned, and inasmuch as Bay-less was his surety, he ought to be bound in the same manner, and that the discharge was a sufficient consideration for Bay-less; and, it appearing by the bond, that it was intended to operate as a supersedeas bond, that is evidence that the discharge of McKee was the consideration of the bond; to which refusal to instruct as above requested, and for instructing in the manner above stated, the defendant, Bayless, excepted.
    The judgment was rendered for $24,000 in debt, and the further sum of $14,474.53 in damages, for which execution was ordered to issue.
    On this record, the errors assigned are these:
    First: It was erroneous to permit the plaintiff to give in evidence the habeas corpus proceedings, and the matters connected therewith, to prove the issue.
    Second: It was erroneous to refuse to instruct the jury as prayed for by the defendant.
    Third: It was erroneous to instruct the jury as prayed for by the plaintiff, and as instructed by the Court.
    Fourth: It was erroneous to permit the plaintiff to prosecute this suit after it had ceased to exist.
    
      Daniel Peck, for Plaintiff in Error.
    There are several questions arising on this case, the principal of which are,—
    First: Was the bond, according to and by the statute, a good and valid instrument? If not,
    Second: Was it a good and binding instrument, by the common law ?
    If both these questions should be decided in the negative, the case is at an end, for it cannot be in any way amended.
    It will be observed that the Court of Common Pleas held this void as a statutory bond, but good by the common law.
    I maintain that it is not a binding instrument, either under the statute or by the common law.
    
      At the common law, a writ of error, of itself, operated as a supersedeas to all further proceedings, in the suit in the Court below, if sued out before execution began. In fact, it removed the record to the court of error.
    This rule of the common law did not suit the taste of our Legislature, for such writs would have been resorted to for mere delay in many instances. To prevent the abuse, perhaps, of this writ, the following act was passed:
    
      “ That no writ of error shall operate as a supersedeas to any ‘ execution issued on any final judgment of the Court of Com- ‘ mon Pleas, unless the clerk, before signing such citation, shall ‘ take a bond from the applicant to the adverse party, with one ‘ or more good securities, in double the amount of the judgment c obtained, conditioned for the payment of the condemnation ‘ money and costs, in case the judgment of the Common Pleas ‘ shall be affirmed, in the whole or in part.” Swan’s Stat. 679, ‘ sec. 120.
    The whole object and consideration of such bond is, that it shall operate as a supersedeas as to the execution. If it did not, or could not so operate, it could not operate as a statutory bond in any way, and was of no validity whatever.
    Did this bond operate to supersede the ca. sa., on which McKee was held in custody ?
    It will be useful to inquire what effect the suing out a writ of error would have, in a case like this, without reference to the statute. At the common law, the writ operated as a supersedeas, if sued out before the judgment had been executed in part or in whole; and an execution was considered as an entire thing, and if begun to be executed, it went on to the end, and the writ of error in such case did not operate as' a supersedeas. The case of Kinnie, qui tarn, v. Whitford, 17 Johns. Rep. 34, was a motion, on the part of the defendant, that the writ of error filed in this case be a supersedeas to the execution issued on the judgment, &c., The execution had been levied before the writ was filed. The Court says:
    “ In a qui tam action, the statute does not require that the c bail to a writ of error should be put in, in order to make it a £ supersedeas: ' But in this case the execution, had issued, and ‘ was áctually levied on the property of the defendant, before £ the writ of error was filed ; and .this writ of .error wa.s, there- ‘ fore, no supersedeas. .This is so decided in Blanchard y. £ Meyers, 9 Johns. Rep. 66.” • ' .
    This last case was a like motion. The Court says,: ££ A ■£ certiorari, allowed after execution began to be executed by the £ constable, is no. supersedeas to’the execution. The same rule £ applies to cases arising under justices’ judgments and execu- £ tions which exists, as to other courts,/When a regular writ of £ error is allowed / and- it is well settled, that the allowance of £ a writ of error, after the sheriff has levied under a fi. fa.¿ .is no £ supersedeas to it.” Meriton v. Stevens, Wills’Rep. 271.
    The case of Brisban v. Baines, 11 Johns. Rep. 197, was a motion to sét aside,a fi. fa: The Court says: ,“In the présc ent case the writ of error was allowed the fourth of January, £ and no bail in error was put in within four days after the ‘ judgment was signed, nor before the execution was delivered £ t'o the sheriff, nor does it appear that it has ever been' put in ‘ to this day.” The motion was denied. ,'
    So, in Blunt vi Greenwood, 1 Cowen’s Rep. 15, the Court decided that an execution could not be superseded, after it had been-executed. ■ '.' / ■
    ■ In the case of The People ex rel. Gould et al. V. The Judges of thet Common Pleas, in "the city of New York, 1 Wendell, 81, the Court' holds that, .when the writ'of error is sued out in time, and the bail given in foür days, the execution' will b,e.-superseded, but'not otherwise. Four.days is given during which the person ■ suing out the writ of error may give the bail, and the execution will be superseded and restitution Be Ordered, if necessary, if issued, in. those four' days; but if the bail is not so given, the same will not- operate as a supersedeas.
    In Meriton vi Stevens,■'Wills’, Rep. 271,'dhé Chief Justice, reviews all' the cases upon this subject.from the earliest'period, and comes to the conclusion that, if a levy is made on-an execution-before the suing out of the Writ of error, .'the sheriff must proceed to the sale of the goods, and bring the money into Court, to abide the event of the writ of error; in which conclusion he is supported by the whole Court, except Mr. J. Fortescue. It is however well worth observation, that in page 280, the Chief Justice expresses his doubts as to the reasonableness of the rule, when applied to a ca. sa. instead of a fi. fa. “ If it were a capias, (he continues,) that being a complete £ execution, it has been holden that a writ of error comes too late ‘ afterwards, for that the judgment is completely executed, and £ therefore the party shall remain in prison, notwithstanding the £ writ of error. But, quere, how far this is reasonable, since £ the statutes, 3 Jac. 1, ch. 8, 16, and 17 Car. 2, ch. 8, in such £ cases, when bail is actually put in to answer the debt, or dam-' c ages and costs, pursuant to the directions of the statutes.”
    This writ was issued in October, 1840; the statute prevented it from operating as a supersedeas. On the 2d March, 1841, by means of the operation of the statute, the bank was entitled to an execution, and of course it could not be at any loss for some one to swear out this ca. sa. on which McKee was that day arrested. When he was so arrested, and in custody, the judgment was fully executed; there was in fact nothing left for either party to do. We have seen that, at the common law, such an execution would not be superseded, but that the party would have to be in jail until the judgment should be reversed.
    The statute does not say that a writ of error, even with the bond, if given in time, shall supersede an execution partly executed, or luholly executed, as in this case, but only that no writ of error shall operate as a supersedeas, unless the bond be given before the issuing the citation, whether there has been an execution or not.
    The statute requiring this bond is in restriction of the common law, and is to be strictly construed. The case of Craig ads. Scott and others, 1 Wend. Rep. 35, was a motion to quash the writ of error. The Court says: the Court will not inquire in an ordinary case whether the writ of error is prosecuted for delay; it is a writ of right to which the party is entitled, and the court ate averse tó impose restrictions upon its prosecution.”
    B ’s chimed that inasmuch as there never was-in fact any citation issued in the case of McKee, by the Belmont Bank, that the bond was well executed as a statutory bond. . ■
    The issuing of the citation and notice, and the service of them, was waived by the party against which the same was 'to be issued and served. . This .'appearance and waiver Was done by the' party and ' the clerk of the' Court; and^ McKee could not-have prevented this,, nor could he have a citation issued after süch waiver: The party 'had the right to waive the • issuing and service of those 'papers, as ■ well as of any other - writ. It was intended by the parties, that this act should place it in .the same situation-.as if would have been in by the issuing and service of the papérs waived, and such is-the legal effect of' that act. ' '
    :it was so considered by the'Cdmmón- Pleas, and in accordance, with that view the Court ruled the bond to be void as a statutory bon'd. ' . . / - '
    The statute is-positive' that no writ of error shall-operate as a supersedeas, unless the bond shall be-given before the signing of. the citation.- This must be taken to, mean what the words--themselves import.There is nothing to explain by; the words ■ are as plain as words can be. '. Neither does the spirit-of'the law require anything'but a literal construction. I conclude,therefore, that this bond1 was not a binding instrument un.der' the statute'.. If not good under the statute, is it binding as a common law bond ? The requisites to a good common law bond are, parties competent to contract, and actual contract by the parties upon sufficient consideration. None.'of -these' here are found. - The parties never did contract. The Bank,1' the,party now seeking to enforce it, had no agency in bringing . it into existence. .
    And it was exe'cuted without consideration. It was designed to operate as a supersedeas; failing in that, it failed to accom-' p'lish what was intended by the, makér, and remained a nudum, pactum. It was so void and lifeless .that vitality could not be' imparted to it by the judicial decision of Judge Rogers, discharging McKee on the habeas corpus.
    
      R. J. Alexander, for Defendant.
    The principal questions arising in this case are —
    First: Is the bond in question a valid statutory bond?
    Second: If not, is it a valid common law bond ?
    The language of the statute is, “ that no writ of error shall ‘ operate as a supersedeas to any execution issued ón any final ‘ judgment of the Court of Common Pleas, unless the clerk, ‘ before signing such citation, shall take a bond from the appli- ‘ cant to the adverse party,” &c. Swan’s Stat. 679, sec. 120.
    The object of the Legislature was, certainly, to so far- alter the common law as to prevent the issuing of a writ of error from operating as a stay of execution, unless a bond should be given to the adverse party.
    It would seem that, by the common law, the allowance of a writ of error is itself a supersedeas. 1 Term Rep. 279.
    And the allowance operates as a supersedeas, though the plaintiff is ignorant of it. 5 Taun. 203; 1 Chit. Rep. 238.
    A writ of error is a supersedeas, without bond being given, either before or after the issuing of an execution, and even after a levy is made. 1 Wend. 81, note (a.)
    Statutes requiring a bond to make a writ of error operate as a supersedeas, are against common right, and must be construed strictly. 22 Wend. 587.
    By the express provisions of our statute, the writ of error in this case could not have operated as a supersedeas without a bond being given; and there can be no doubt that the writ of error did operate as a supersedeas, if the bond was given before the clerk signed the citation.
    The statute, then, must be construed strictly, and Bayless himself claims that it shall be so construed; and, by this construction of the statute, strictly as against the bank and liberally in favor of McKee, the question of fact arises, was the bond given before the clerk signed the citation ? The clerk' certainly never did sign the citation, either in effect or «in fact. The issup'and service, of. a citation was waived by the bank, and a citation never-did issue, and consequently could not have been signed'By the.clerk. In this.view of the case, if .appears plain that the bond did operate as a supersedeas, and that’ Judge Rogers was right in. so finding and ordering the discharge of McKee. .' /" ’
    But we go., further, and insist that, if the clerk had signed the citation before the bond was-given, it, being, a.'ministerial act, and only directory to the clerk, yet thé bond would be valid upon a fair construction of the statute, and the decisions made by courts of high áuthority in analagous cases.'
    By the statute of Massachusetts, .a writ- of replevin was only effectual upon, the giving of a bond by the plaintiff in the suit, with sureties; and, in an action on such bond, executed by'the surety before the- service of the Writ, but not' by the principal until after its return and the entry of the action, it was holden good as against both. 11 Mass.- Rep. 282.
    Such a replevin bond is valid, although given the day after the service of the writ. 14 Mass.-Rep. 313.
    The same statute requires a replevin bond to be conditioned to appear at the next term of the Court of Common Pleas, &c.; and; in an'action on such .bond, conditioned tó appear at the next county court, it whs held, in effect, good by the statute, •and, if not, it was Valid «by the common-law.. <8 Mass. Rep. 149.
    'A bond given by a cotmty treasurer, not conditioned as required‘by law, in part, was'held a good statutory bond as far as it went, and .if not good by the statute 'it was by the common law.. 10 Ohio Rep. 51. , \ ,
    But, independent of other matters, it is confidently claimed on the part of the bank, that Bayless and McKee aré both precluded from saying,now that the bond .did not opérate as a supersedeas,- and that McKee was improperly discharged from custody, and that the bond is not valid, by the statute, for that reason.
    
      “ If a representation be made of any fact with a view to in- ‘ fluence the conduct of another, or to derive an advantage to £ the party, and which cannot afterwards be denied without a ‘ breach of good- faith, such representation will preclude the £ party who made it from insisting- upon the contrary.” “For ‘ in these and other such cases the party, by taking the benefit ‘ of the act, has conclusively adopted it.” 2 Starkie on Ev. 28, 24.
    An estoppel in pais cannot be pleaded, but is given in evidence to the court and jury, and may operate as effectually as a technical estoppel. 8 Wend. 480, and cases there cited.
    If the bond had recited that a writ of error and supersedeas had been obtained, it would have been a technical estoppel. 5 Ohio Rep. 169; 5 Mass. Rep. 317; 6 Mass. Rep. 33 ; 11 Mass. Rep. 282.
    If the bond is valid as against McKee, it is equally so as against Bayless.
    The sureties are liable on the bond for all that the principal is. 5 Watts & Serg. Rep. 21.
    If Linn (principal) received a sufficient consideration to uphold the promise on his part, it was sufficient to bind the sureties. There was no necessity for any consideration passing directly between the plaintiffs and the sureties. 15 Peters’ Rep. 314.
    “ If Neal (the principal) is answerable on his bond, so must £ his surety be, who voluntarily executed it, that Neal might £ get his goods6 Mass. Rep. 33. And, in this case, the principal was not permitted to show that he sued out the writ against law, to avoid the bond, and the surety was held bound in like manner with his principal.
    Second: If the bond is not. good by the statute, is it a good common law bond ?
    A contract entered into between competent parties'and for a lawful purpose, not prohibited by law, and founded upon a sufficient consideration, is a valid contract at common law. 15 Peters’ Rep. 311.
    
      There ought to be some very strong grounds to authorize a Court to declare an instrument absolutely void, which has been voluntarily made upon a good consideration. 15 Peters’ Rep. 315.
    Has the bond all the requisites of a valid contract, at common law ? Let it be tested —
    First: Was it entered into between competent parties ?
    Without any legislative act, it is competent for the United States and its subordinate agents and corporations to enter into contracts, if not prohibited by law, and appropriate to the just exercise of granted powers. 5 Peters’ Rep. 115, and cases referred to.
    Second: Was the bond taken for a lawful purpose, not prohibited by law ?
    No objection is made to the bond on this ground.
    Third: Was the bond founded upon a sufficient consideration ?
    To support a contract of guaranty, it is a sufficient consideration, if the person for whom the guarantor becomes surety receives a benefit, or the person to whom it is given suffers inconvenience. Chitty on Contracts, 398; 4 Greenl. Rep. 521; 2 Har. & Gill. Rep. 13.
    Waiver of a legal right, at the request of another, is a good consideration for a promise by him. 2 New Hamp. Rep. 97 ; Wright’s Rep. 660; 4 Pick. Rep. 9; 14 Johns. Rep. 466.
    A benefit resulting to the party, or, at his instance, to a third person, is, by all courts, held to be a sufficient consideration.
   Birchard, J.

A determination of two questions will dispose of this case —

First: Was the bond good under the statute ?

This question will be solved when we ascertain whether it operated to supersede the ca. sa. By the record, we learn that the judgment sought to be superseded had been removed, by writ of error, in October, 1840, to the Supreme Court of the county; that the parties had entered an appearance voluntan1y; that the cause was submitted to the Court upon the circuit, and, by the judges, reserved for decision in Bank. The bond was delivered to the clerk and approved on the 13th day of August, 1841, about ten months after the jurisdiction of the Supreme Court, by consent of defendant and the assent of plaintiff, became complete. It took effect, if ever, as a valid bond, on the day of its delivery to the clerk, and from the moment he indorsed his approval upon it. By the statute, (Swan’s Stat. 679,) “No writ of error shall operate as a su- * persedeas to any execution issued on any final judgment of ‘ the Court of Common Pleas, unless the clerk, before signing { the citation, shall take a bond from the applicant to the adverse ‘ party,” &c. This statute is imperative. There is not much room left for construction, because its meaning is obvious and cannot be mistake^. It changes the rule of the common law, and introduces a new principle. Before the statute changed the law, the writ of error removed the entire proceeding from the inferior to the superior court, and left nothing remaining for the former to act upon. It took from the former the judgment and vacated it, with all its incidents. The force and effect of the statute requires the bond to be filéd before the Supreme Court obtains jurisdiction of the parties to the writ of error. This is of the essence of the act. In the case under consideration, the Supreme Court had full jurisdiction near ten months before the delivery of the bond, by the acts and consent of both parties, or it never had jurisdiction. The defendants must take one or the other of these positions. If the first, and they treat the entry of an appearance by Mr. Cowen as the equivalent of a citation, and as substituted by the consent of both parties for a citation' — and we think they must so treat it — it then follows that the bond came too late, and is.not good, as a statutory bond. The object of such a bond is to affect the writ of error and cause it to supersede the execution. That was its consideration. It failed in that object, and, therefore, under the statute, failed altogether, unless there is some rule of the common law which will [give it support. Against this view it has been urged, that the bond was filed in time; that, inasmuch as no citation has yet been signed and none ever issued, it was literally filed before “ citation signedthat the statute being derogatory to the" rules of common law, must be strictly construed, and the words must be literally taken. This argument is like a two-edged sword, for it cuts more ways than one. If no citation has been issued, and nothing equivalent can supply its place, it inevitably follows, that no action whatsoever could be maintained upon the bond. Upon that hypothesis, the condition could not be forfeited. The Bank could have no right under it. Without a writ of error, a citation or its equivalent, a judgment or affirmance by the Supreme Court, a mandate and execution returned no goods, there could be no proceeding upon a valid bond.'

We proceed to consider, secondly, whether the bond is good at common law.

To be good at common law, there must have been parties able to contract, their minds must have united in making the contract, and upon a good consideration, which consideration must have been the one agreed to, and existing as executory or executed, at the delivery of the bond.

Now, to strip the question of all embarrassment, in order that we may have a clear conception of the law, let us for a moment lay out of view the entire proceedings before Judge Rogers, and then see if there was any, and if so, what consideration for the bond at the time it was delivered and took effect. We may well do this, for it is not to be supposed that any lawyer will seriously contend that his subsequent opinion or decision upon the habeas corpus, be it right or wrong, can in any way affect the obligation of the parties to a prior executed bond. Whatever may have been the rights of the parties, either at common law or under the statute, they were in no sense dependent upon Judge Rogers. He could neither enlarge or dimin.ish their obligation. The bond was good without his aid, or good for nothing in spite of him. As a common law bond, then, there must have been a consideration. In this case, sole consideration was that it should operate to supersede the ca. sa. on which McKee was held in custody. It was executed upon this supposed consideration, and so delivered to the clerk. But we have already seen that it had legally no such effect — already seen that third parties could not add any vigor to it beyond what had been imparted to it by its makers. Suppose Judge Rogers had not erred, but had held, as he should, that the writ of error did not supersede the execution, where, then, would have been the consideration which would have sustained the bond at common law ? It is very clear that there would be none. The faet that he did not so decide can make no difference. A judicial error of an Associate Judge of the Common Pleas was not the thing contracted for, or if so, was not a valid consideration. The discharge of McKee by him was not what was stipulated for. If it were so, another serious objection would exist: it would be void as a bond given for ease and favor. The common law would not sustain a bond having no other consideration than the violation of duty by a public officer. We therefore are constrained to say that the Court of Common Pleas erred in refusing to give the second and third instructions, as prayed for by plaintiff’s counsel, and in charging that the discharge of McKee was the consideration, and sufficient.

This disposes of the case, and renders it unnecessary to pass upon any of the other points made. But thus far I have proceeded without noticing one of the cases cited by counsel. This has been done solely with a view of enabling me to make the decision as clear as possible. The questions are intricate and interesting in themselves. The case in which questions of this kind have been considered with most ability, is Zinn’s case, 15 Pet. Rep. That sustains the cases in replevin cited for defendant from the Massachusetts Reports, and 10 Ohio Reports. O-ur decision, upon the closest scrutiny, will be found to contain nothing in conflict with the sound principles established in those cases. In each one of those cases the obligors received the precise consideration contracted for, and that consideration existed as executory or executed, at the delivery of the bond.

Another position has been taken for the defendant in error which deserves notice.

It is said that McKee and his surety, Bayless, are estopped from denying that the bond superseded the ca. sa. That the main object of filing the bond was to procure the release of McKee, which object was attained, under circumstances amounting to an estoppel in pais. Let it be always borne in mind that Bayless is a surety, that his only act in the whole matter was the affixing his signature as surety of McKee, at the date of the bond, and his happening to be in Court and remaining silent during the proceedings upon the habeas corpus. What had been done prior to that trial by him was altogether beyond his control. He then had no right to interfere with that proceeding, and his silence in no sense operated as a fraud upon the bank. There is no ground to say he is estopped from averring the truth.

Judgment Reversed,  