
    * Joseph Denny versus Ephraim Lincoln, Administrator.
    A., a deputy sheriff, having an execution against B., and having it in his power to arrest the debtor’s body, C., in consideration of A.’s forbearing to arrest B., promises in writing to deliver him to A. at a certain day and place, that he may be taken and committed in execution. In the mean time, B. places in C.’s hands a sum of money equal to the judgment debt, as an indemnity against his contract, which sum is afterwards, by agreement between B. and C., applied to pay other executions against B., who is not delivered to A. It was held that no action lay for A. against C. upon his promise, nor for the money paid by B. to C.
    This was an action of the case, in which the plaintiff, a deputy sheriff for this county, declares that having in his hands an execution in favor of Patrick Cassin, against one John Patterson, on which was due 479 dollars, 13 cents, to execute according to the precept of it; and having it in his power to arrest and commit the said Patterson, Joseph Darling, the defendant’s intestate, together with one Tilly Houghton, by their memorandum in writing, in consideration that the plaintiff, at their special instance and request, would forbear arresting the body of Patterson, promised the plaintiff that they would deliver Patterson to him at a day and place named, or pay the plaintiff the full contents of the said execution, with his fees for executing it, and save the plaintiff harmless forever in and about the premises ; that the plaintiff accordingly forbore to arrest Patterson, relying on the said promise, and was ready at the day and place named in the memorandum to receive and arrest him and commit him on said execution, but the said Darling and Houghton neglected and refused to deliver Patterson; whereby the plaintiff has ever since been deprived of an opportunity to levy the said execution, and hath been compelled by law to pay, and hath paid Cassin, the creditor, the sum due thereon; yet neither the said Darling nor Houghton, nor the defendant, have ever paid him the said sum of money, nor in any way saved him harmless. There is also a second count for 500 dollars, had and received by Darling to the plaintiff’s use.
    In a case stated for the opinion of the Court., it is agreed [ * 386 ] that Darling and Houghton made the promise * declared on j that Patterson did not appear at the time and place promised, but avoided, so that the plaintiff could never arrest him, nor find any property of his, while the execution remained in force, in consequence of which the plaintiff was held to pay, and did pay to the creditor the full amount of the execution.
    It is further agreed, that upon Darling’s being informed of Patterson’s avoidance, he applied to him for security to indemnify him against his engagement to the plaintiff, upon which Patterson put into his hands, for the purpose of an indemnity, a sum of money to be paid to Denny, sufficient to discharge the execution; that Patterson was indebted on divers other executions, which were in the hands of Darling, who was also a deputy sheriff, and the sum due on these executions was greater than that due on Cassiti’s; and it was after-wards agreed between Patterson and Darling, that the money paid as above by Patterson to Darling, should be applied to the discharge of those executions which the latter held as aforesaid; the plaintiff having no knowledge of these transactions between Patterson and Darling.
    
    If, upon these facts, the Court are of opinion that the plaintiff is entitled to recover upon either count in the declaration, the defendant is to be defaulted, and judgment rendered against him for 215 dollars, and costs ; otherwise the plaintiff is to become nonsuit, and the defendant have judgment for his costs.
    
      Denny, for the plaintiff
    relied on the plaintiff’s right to recover upon the first count by virtue of the original-undertaking of the defendant’s intestate. But if that transaction should be considered by the Court as not furnishing a legal ground of action, the payment of the money by Patterson to the intestate was an appropriation or payment of it to the plaintiff’s use, and the after-fraud practised in turning it to another purpose, cannot deprive the plaintiff of his right to recover on the second count.
    * A. Bigelow, for the defendant
    held the original [ * 387 ] transaction wholly void, as against the policy of the law.
    The plaintiff having an opportunity to execute the precept in his possession by arresting the debtor, and omitting to do so, was guilty of a breach of his duty; and any obligation, made in consideration of, or to indemnify him against the legal consequences of his own misconduct, is ipso facto void.
    The money paid to the intestate by Patterson, besides that it was paid in aid of the original illegal transaction, and on this account could not be the foundation of a legal suit for its payment over, was paid at the instance of the intestate, without the request or even the privity of the plaintiff. Some privity must exist between the plaintiff and the defendant’s intestate, to enable the former to maintain this action on contract. This being an affair altogether between Patterson and Darling, and intended solely for the benefit or indemnity of the latter, the same parties had an undoubted right to alter the appropriation first agreed on, and to apply it to the discharge of other judgment debts equally pressing upon the debtor with that which the plaintiff had to collect.
   The action was continued nisi for advisement, and the opinion of the Court delivered at the following March term, in Suffolk, by

Parsons, C. J.

On the first count it is manifest that the action cannot be maintained. The consideration of the contract was a violation of the plaintiff’s official duty, and he cannot support an action to recover an indemnity for his own voluntary illegal conduct.

The plaintiff has urged his right to recover on the second count upon equitable grounds. But this count must share the same fate with the first. However this question might be settled on moral principles between parties equally guilty, we must be governed by the established maxims of law. The plaintiff has no legal remedy, either against Patterson, the debtor, or against Darling [ * 388 ] or Houghton; for an express promise to indemnify * him against the consequences of his own breach of duty cannot be valid, neither will the law imply a promise on an illegal consideration.

But it is said that if Patterson or Darling had paid the plaintiff the amount of Cassin’s execution, no action could be maintained to recover back the money so paid; and that as the money paid by Patterson to Darling must be considered as paid to Darling as the bailiff of the plaintiff, and as a voluntary payment to the plaintiff by Patterson, which he could not revoke, neither could Darling withhold the money from the plaintiff.

This position cannot be admitted in all its extent. If a debtor should send by his own servant, money which he owed to his creditor, and the servant refused to deliver it and retained it, an action for the money might be maintained by the creditor against the servant. But if the debtor had, before payment by the servant, countermanded his orders, and received back the money from his servant, he would not be liable to an action by the creditor; and any person, by whom the money was sent, would for this purpose be the servant of the debtor. It would be otherwise if the money had been sent, not by a servant of the debtor, but by an agent of the creditor; for then the debtor could have no further control over it, and the re ceipt of the money by the agent of the creditor would discharge the debtor.

In the present case, we cannot consider Patterson as a debtor to the plaintiff. But if we could, and that he sent the money by Darling to the plaintiff, Darling must be considered as the servant of Patterson, and not as the agent of the plaintiff; and the former might, before payment over, revoke the orders he had' given to Darling, and retake the money. For it is agreed that the plaintiff had no knowledge of the transactions between Patterson and Darling. and there could be no legal privity between Darling and the. plaintiff.

* This view of the question will not authorize a judg- [ * 389 ] ment for the plaintiff; and it is a view more favorable for him than the facts will warrant.

When Darling supposed that he was liable to the plaintiff upon his contract of indemnity, he applied to Patterson for an indemnity against his own contract with the plaintiff. The money was placed in his hands as a security against that contract, to enable him to repay to the plaintiff the amount of Cassin’s execution. But after-wards the same money was appropriated to Patterson's use by his order, and with Darling's assent. If Darling was willing to part with his security, the plaintiff has no legal ground of complaint; for Darling was not his agent to receive the money to his use from Patterson, the judgment debtor.

We do not discover any principles of law, on which the plaintiff can have judgment on his second count.

It is to be regretted that officers, having a plain path before them, will not pursue it. If they deviate from it, it must be at their own peril: and they cannot protect themselves against the damages arising from a breach of official duty, by any collateral stipulation for indemnity.

Plaintiff nonsuit.  