
    In Bank.
    Dec. Term, 1846.
    Silas Hyatt vs. Lewis Robinson and others.
    In an action of debt uppn a specially, where the deed is merely inducement to the action,-while its foundation depends upon other-extrinsic matters of fact, nil debit is a good plea.
    It is .a good defence to an action upon a 11 prison bounds bond/' that an order was made by the Court or Judge for the issuing of the ca. sa., that the order was ' made without preliminary proof, or that the ca. sa, has been quashed for irregularity. ■. f ...
    it is no defence in such case, that the penalty of the bond is more or less than re-» quired by the statute, that the order for jssuing the ca. sa. is not recited in, nor indorsed upon the writ, nor that the facts upon which the order was made, are-not-true. ■ . . •
    Thi§ case comes before this Court by appeal from-the'Court-of- Commou' Pleas of Muskíngum County. .
    ’. The declaration-.is in Debt, upon a “prison bounds bond.” "It sets forth the condition;- avers that-defendants, Aaron Robr inson'and".Isaac Robinson, were the .sureties of the defehdanf,•• Lewis Robinson; that they, were, át - .the timé of its execution,' residents of Muskingum county, and wore'duly- approved as - such sureties, by.two of- the. Judges'.of the properCourt; and-assigns'for breach,-that Lewis-Robinson, the principal in the '' bond,-.went'beyond the'limits, &e. ' • ■
    ■ To-this declaration, the defendants, Aaron and Isaac-Robiri;son> pleaded jointly the following pleas: ■ • "
    -'i./ Nil debit;
    ,- 2.--' Noii est factum.'
    " 8;- :That'the supposed 'writing,"called .ay“1.pnsbhy''bdunds-bond,”, was taken for a sum less than' double the' sum'for which the-sáid Lewis stood committed, &e., and is therefore void, &c.
    4.' That the said supposed writing was taken for more than double the sum for which the said Lewis stood committed, and is-therefore-void, . ' .
    
    .. 5.' -That'nd; order'was'made by the 'Court, or'any \Judge, upon the'affidavit-of the plaintiff 'or his attorney,' ánd óther' testimony, authorizing the issiie .of 'ca.-srí; but--the-'writ was. issued without any. such order, .and without- the Court or. any Judge being satisfied-'by -such affidavit and other testimony .therewith presented, of the existence of any of the • or .causes of arrest .enumerated in the statute, ahd that, .thérefore, the ca. sa-.,- and also the .bond‘predicated,- théreqn, are void, &c. , . :. ■
    6; ‘ That the ca, sa. did no.t recite'or set forth, arty order ■ made by the Court' or any Judge, upon affidavit .and other testimony, authorizing' the' issuing 'of such writ.. '
    • 7. .That the said Lewis was unlawfully-imprisoned , by .the ' plaintiff,, and detained by the force and duress'.of.-the imprisonmenf;-the said Léwis and the said Aaron and. Isaac,, as his .. sureties/ made, and delivered the said writings,' AN '. . ■ '
    ;; 8.' That the ca. sá. was issued under an order made by the .Court, solely upon the affidavit of the plaintiff alone, and with-'but'.any other testimony presented by him or his attorney, to ^satisfy; thé 'Court 'of the 'eiistepce' of' any of the , enumerated grounds of arrest'. ' '• }'
    9.' . That there was noheoord of .any such judgment' as that recited in the ca. sa. ■■ ' • ';. : "•'•?.
    ■ TO., That the cá. sá. was issued under, a supposed order of the Court'allowing the same, upon the affidavit of the .plaintiff that the said Léwis was about to remove - his body out of the. jurisdiction, of thé Court, and without any other cause or ground alledged" for-such writ; and aVers-that the said Lewis was not,.’. in fact, about to -remove his body out of .the jurisdiction of the Court,' ’
    Lewis'Robinson, the principal in the bond, plead.separately:
    1. Nil debit;
    S. Non est factum.
    '3, Duress.-
    ,. 4. That-the ca.'sa. was issuéd under-a. supposed order, &c., being similar to the 10th - joint plea of the other two defendahts. . ■ ; •
    After the case came into -this Court,, all the defendants jointly filed, an' additional plea, setting, forth that the ca. sa.'has, since the appeal in this case, been set aside, .rescinded and vacated by an order of the Supreme Court, duly made in the premises, which is still in full force and unre'versed.
    Upon the second pleas, both joint and separate, the plaintiff joined issue, and replied to the ninth joint plea. As to all the other pleas, both joint and separate, he demurs generally, and the defendants join in demurrer.
    
      George James, for Plaintiff.
    The plea of nil debit, is not good, the declaration being on a specialty; 1 Chit. Plea. 351. “To debt on a bastardy bond, the plea of nil debit, is bad on general demurrer Trimble and others v-. The State, 4 Blackf. Rep. 435; None v. Kidwell, Ibid. 554. “ Nil debit not a good plea to debt on bond setting forth the condition and breachJanson v. Os-trader, 1 Cowen’s Rep. 676. Whether the bond is for too much or too little, is not a defence to a suit thereon. 44 An ap4 peal bond in less than double the amount of the judgment 4 appealed from, is not void, but goodBank of Columbus v. Bartlett, Wright’s Rep. -741; S. P. 5 How. Miss. Rep. 407. 44 A forthcoming bond taken for more than the sum due on the execution, does not vitiate itScott v. Hornsby, 1 Call, 41, 45; Bell Of Harrison v. Marr, Ibid. 47; Wilkinson v. McLocklin and others, Ibid. 49. 44 Though a bond for the 4 jail limits be taken for less than double the sum for which the 4 prisoner is committed, and so not within the statute, it is 4 a. good bondClap v. Cofran, 7 Mass. Rep. 98;  Same point, Freeman v. Davis and others, Ibid. 200; * Same point, Burroughs v. Lowder and others, 8 Mass. Rep. 372; * Vide Gano v. Slaughter, Hardin’s Rep. 76. 44 A replevin bond taken for too much, does not avoid itNicholson v. Howsley, Littell’s Select Cases, 300.
    
      As to the plea of duress of Lewis Robinson, the principal: This is a joint action on a joint and several bond against principal and securities. So it follows that a plea or defence, whether “joint or several,” must be an answer to the entire “ cause of action;” and though a plea might be good for the principal, yet,not for the securities: it is therefore bad; Farrington v. Galloway and others, 10 Ohio Rep. 543; Slipher v. Fisher and others, 11 Ohio Rep. 299.
    Duress of principal, is not a defence for the sureties. “ A * surety is liable on an agreement made by him to relieve his ‘ principal from duress;” Story on Contracts, p. 60, secs. 93, 94, 95. “ Duress is no discharge to a surety against whom it has not been practiced ;” 1 Esp. N. P. pt. 2, p. 5.
    “ When a mother executes a bond to procure the enlarge- ‘ ment of her son, who was in duress, such.duress is not plead- ‘ able in bar or discharge of the,bond;” Sims v. Barefoot, 2 Hayward’s Rep. 402.
    “ At common law, a prison bounds bond, executed by sureties whilst principal is under duress, is valid as to them; Jones v. Turner, 5 Littell’s Rep. 147. I respectfully solicit the attention of the Court to this case, as it is directly in point, and decides this case, even in the strongest view the defendants can ask it shall be viewed; as in the case referred to, there was no legal execution in the hands of the sheriff when he took the bond reciting it, which the defendants claim to have been the case here.
    “ If A and B enter into a bond, by reason of duress, to A, ‘ B cannot avoid this obligation by reason of such duress.” 2 Ba. Ab. tit. Duress B. 403; 1 Shep. Tou. 62; Huscomb v. Standing, Cro. Jac. 178; Peirce v. Mclntire, 2 Dane’s Ab. 224, sec. 5.
    “ At common law it cannot be controverted, that if a bond ‘ be obtained from A and B, by duress against A, B cannot £ plead duress of A to invalidate the bond as against him.” Thompson v. Lockwood, 15 Johns. Rep. 259. This and the case in 5 Littell were cases on prison bounds bonds, where the arrest-was illegal; and in those'cases the,bonds were avoided by statutes against ease and1 favor in those ■ States." We have no such’statute, and. the case before the Court depends on common law .principles. ■' • . ' . \ .
    
    “Defects in judicial' process of proceedings, toan only be .‘ taken advantage of by those'who are injured thereby.” Jackson vr Bartlett, 8 Johns. Rép. 361. '
    .‘■‘On-,a recognizance of bail, the sureties cannot set up the ‘ bankruptcy . and discharge of their-principal as., a defence.” Donnelly v. Dun, '52 B. and P.' 45. ' ;
    “ In .an action of debt on a recognizance of bail, the sureties ‘ cannot set 'up as a defence that thé ca. sa. was improperly ‘ issued.’,’ Gillespie v.. White, 16 Johns. Rep. 117.
    “ In an action oh, a -constable’s bond, his sureties cannot set .7 ■ . ■ ' ■ ’'.'.I ‘ up as.a defence,, that .the execution on' which he-received the ‘ money was'void;” .-' Landón -V. Erwin, 9 Werid, Rep. 237.-
    ■ ;A surety 'cannot take advantage of .the duress of the principal. Gummond -v.' The People, I Hill 346. •
    ■ y In an action of -debt on- a .replevin bond■ against"a surety j •‘' he' cannot set up as a defence, that th'e goods replevied Were- ‘ the plaintiff’s on replevin, and were attached as such by de-- ‘ fendant, who was ;sheriff, on.-mteshe' process'against the plain- ‘ .tiff in replevin;” Flagg v, Tyler, 3 Mass;, Rep. 3Ó2.
    “ A-debtor.arrested by a sheriff on a ca. sa., and permitted ‘ to escape, is again arrested,, and .to. obtain his discharge-gives ,‘a prison bounds bond; bond good.” Brown w Gitchel, 11 Mass Rep.' 11. -'
    If I am- right in the position I have taken; that thé duress of thé'principal is no defence to this* action, it follows, as a corollary, that all ,the other pleas of securities to which I have demurred aré defective', and are not a defence to- this áction; for these pleas, all presuppose,' that -by -reason' of • matters and, things therein contained, the writ on which'L* Robinson was' arrested was .^regular and void; consequently the arrest was illegal, which' illegal arrest constitutes the- duress pleaded.' Now, if the duress, which was the legal consequence of those matters and things set forth in the pleas, is not a defence, it follows, I say, that the pleas themselves are not a defence, or if the duress is not a defence, that which constitutes the duress cannot ' be. The parts cannot be greater than the whole; and proof that the writ on which the arrest was made was void on its face, would not sustain the plea of duress.
    As to the joint plea of all the defendants, it is contended that the recital of the writ in the condition of the bond estops the defendants from denying the validity of the Writ. If the writ was void, it Was not a writ; but the condition admits the issuing of the writ, which presupposes it was a valid writ.
    “ The recital of an execution in a prison bounds bond, pre- ‘ eludes the party from denying there was such execution; so ‘ the recital in such bond, that A B was jailor, estops the party ‘ from denying he was jailor.” 2 Littell’s Rep. 211.
    The defendants in an injunction bond, reciting an injunction, are estopped from denying the validity of the injunction, though it was void, or the authority of those who ordered or issued it. Ibid. 310. •
    “ In an action on a prison' bounds bond, reciting that the ‘ party ‘ was charged in execution,’ he is estopped from denying ‘ that fact, although that he should have been thus charged was ‘ essential, when in fact he was not so charged.” Jones et al. v. Pruvit et al., 3 Marshal’s Rep. 303.
    “ In a suit on a forthcoming bond, for the delivery of goods, ‘ the obligors are estopped/ from denying any admissions made ‘ in the recital of the bond or controverting their existence; ‘ therefore, the production of the execution recited is unneces- ‘ sary, the recitals in the condition being conclusive.” Crisman et al. v. Mathews, 1 Scam. 111. Rep. 151.
    “ In an action on a replevin bond, the defendants are estop- ‘ ped from denying the constitutionality of the law under which ‘ the bond was executed.” Magruder v. Marshall, 1 Blackf. Rep. 333 ; Weaver et al. v. Field et al., Ibid. 334.
    “ In an action of debt on a bastardy bond, the defendants ‘ are estopped from denying the facts set forth in the recital of .« the condition of the bond.” Trimble v. State, 4 Bláckf. 435.
    “ it was stated in the condition’ óf an attachment bond, that « an attachment had issued, and the condition was' set out in .« declaration. ' Held,, on-general demurrer/that a-plea denying « the attachment had issued was inadmissible.” • Love v. Kid-well et al, Ibid;. 553. • • •
    -.“Where an execution issued, against'an individual against- « whom there was no judgment, and who was not a .party to the •«. original suit,.'but- who gave a replevin bond reciting the execu- •« tion -held he was-bound-by the recital.”' "Hudson v,Morris, - íl.Wááh. Rep. 70.;'■ . .
    ■ "'“'On a motion on a forthcoming bon'd, the defendant;,is not ‘« fallowed to prove that the execution and judgment Was against -«¿another' person of thp same name with him and not' against ■« ihimselfV”. Dowman et al. v. Dowman et al., 2 Call’s Rep. 507.'
    , -“'The defendant is estopped by recitals in bis' deed.” Shelly v. Wright, Wille’s Rep. 9. . ’ .. : v ■
    “«Estopped by recitals in the .execution Of a bond.?? Hever v. Searle, 2.B. and.Pul. 299.. . , * . ■ '
    . “In a suit upon a .writ of error bond, reciting that the dé- « fendarits' had obtained writ'of error' arid supersedeas., they are «estopped from -denying'..'-. these ..facts.?’-;' Reynolds et al., v-.- • .¡Rogers,. 5 fOhio R-ep.'.178, per Cur.: ,
    • . “ Where a prison -bounds bond .states the-amount of. execu- «' tion for-which, a patty was in custody, it is. conclusive of that «. fact,'and the amount cannot be denied.”. Talmadge et at. v. Richmond, 9 Johns..R.ep. 86. a • • " .-
    .'-“ In an action on á bastardy-bond,.the party is estopped by ■« the-bond from alledging that the place of settlement was any « other than that'set out in the bond.” . ■ Falls-et al. v. Belknap, 1- Johns. Rep. 486. ' ■ '
    «‘.Th<e.recital of a ca. sa. in a prison bounds bond, is a suffi- « eient proof of it in -an action ori the bond — the writ need « not be produced.” ;. Ransom v. Keyes, 9 Coweri’s Rep. 128. If the recital of the writ.be conclusive of its. legál existence, .such writ cannot be denied ás a matter of fact' of of law. 44 The defendant’s bond reciting an acquittal, estops him from 4 denying it, by the common law, and the estoppel may be set 4 up by demurrer.” Gumond v. The People, 1 Hill’s 346.
    44 Upon a scire facias against bail, they cannot deny the arrest 4 of their principal. They are estopped by the recital of the 4 arrest. In a suit on a bail bond admitting or reciting the ar4 rest of the principal, the securities would not be permitted to 4 deny that fact.” Bean v. Parker et al., 17 Mass. Rep. 591, 600.
    44 Obligors to an administrator’s bond are estopped by the 4 recital in the bond to deny the appointment of an administra4 tor.” Cutler v. Dickerson, 3 Pick. 386. -
    44 Without multiplying authorities on a point rendered clear 4 by numéroüs cases, it is sufficient to state, that a party -to a 4 deed is estopped, not only from disputing the deed itself, but 4 every fact it recites.” Slow v. Wyse, 7 Conn. Rep. 220.
    44 A party to a deed, who, thereby, admits himself a princi4 pal, is estopped from denying that fact. The doctrine of estoppel is founded on reason and justice, and is abundantly 4 sustained by authority.” Bank of .Mount Pleasant v. Sprigg, ■ 1 McLean’s Rep. 182; Same case, 10 'Peters’ Rep. 257.
    44 A recital of a previous lease, in a deed of marriage settle-4 ment, is conclusive evidence, between the parties, of the exist-4 ence of such lease, and supersedes the necessity of introdu4 cing any other evidence to establish it.” -Carver v. Jackson et al., 4-Peters’ Rep. 83. ■ • ■
    Where the matter of' estoppel appears by the pleadings, as it does in this case by the declaration in which the bond and condition are set out, such estoppel may be taken advantage of by demurrer — as to plead that anew which already appears, would be useless. Most of the cases to which I have referred, were on demurrer. See 1 Chit. Plead.; Salk. 370; 2 Littell’s Rep. 310; Pirtle’s Digest, 370.
    Even, as to Lewis Robinson, the defence here set up cannot be sustained, it is conceded, unless the sheriff \yho executed the writ was a trespasser at that time. Could an action of f.regpass have ]3een sustained by Lewis Robinson against the for arresting him on the writ set forth in the bond ? The writ, on its face, showed it to have been issued by a court of competent jurisdiction over the person and subject matter, (this is shown by the pleadings,) and was, therefore, when executed, when the bond was taken and when this suit was brought, a justification to the officer. A sheriff is certainly not responsible for the errors which a superior court may decide an inferior has committed. In this case, the writ was not quashed, and the order of the court directing it to issue, not reversed, until after this case was appealed by defendants. Suppose a writ, regular on its face, issue on a judgment, afterwards decided to be void or erroneous, or even without any judgment, it is certainly the duty of the officer to execute that writ, and it will be a justification to him of liis proceedings under it. The subsequent reversal of the judgment, or the quashing of the writ, will not make him a trespasser by relation. If the writ in this case, when it was executed, was a justification to the sheriff, as we say it was, there was, then, no trespass committed by ■him, consequently no duress. The subsequent reversal of the order directing it to issue, and quashing the writ, could not render that a trespass which was not so when done, nor could it affect the bond, or heal the breach of the condition thereof, which had been made and sued for before such reversal or quashing. For these reasons, also, the last and joint plea is bad, independent of the doctrine of duress and estoppel, for which I have contended.
    Our statute in relation to imprisonment for debt is similar to, if nót a transcript of the New York statute; and there it has been decided, “ That an order to hold to bail need not be indorsed on the writ; it is sufficient that it exist;” Carter v. Drake, 10 Wend. The writ, then, on its face was good. It recited the order of court. If so, the officer was not a trespasser.
    
      “ Trespass will not lie against an officer for executing process regular on its face.” Luddington v. Peck, 2 Conn. Rep. 700. ,
    “ It is the duty of an officer to execute all process in his ‘ hands, which appear, on their face, to have been issued by c competent authority and with regularity.”, Watson v. Watson, 9 Conn. Rep. 140.
    “ A ministerial officer is protected in the execution of pro-4 cess from a court of limited or general jurisdiction, although ¿ such court has not, in fact, jurisdiction in"the case, provided 4 such process, on its face, shows the court had jurisdiction of * the subject matter, and the officer was not apprized to the * contrary.” Savascool v. Boughton, 5. Wend. Rep. 170.
    “ It is the duty of a sheriff to levy an execution regular on’ its face.” Parmelee v. Hitchcock, 12 Wend. 96.
    “ A ministerial officer, who executes the process of a court 4 having jurisdiction of the subject matter and the power to is-4 sue process, is protected in the execution thereof, if thq pro- * cess be regular on its face and, apparently, within the juris4 diction of the court.” Parker v. Walrod, 16 Wend. Rep. 514.
    Erroneous process is a justification to a sheriff for imprisoning the defendant under it — for a sheriff is not the judge of the legality of it. Jaques v. Cesar, ,2 Saund. 101, y. n. 2; Pickard v. Bills &/ Knap, Wright’s R,ep. 344.
    “In trespass against a constable, irregular process from,a 4 court having jurisdiction of the person and subject is a justi1 fication, although the preliminary steps to the process (the 4 affidavit,) are irregular. Taylor v. Alexander et al., 6 Ohio Rep. 147,— per Cur.
    “ An attachment issued without an affidavit, is a justification to the constable who executes it.” Bogan v. Stoutenbaugh, 7 Ohio Rep. 134, pt. II.
    These cases show that the sheriff was not guilty of trespass when he arrested Lewis Robinson. If he were guilty, the Court who ordered the writ, and the clerk who issued it, were equally guilty; and if the jurisdiction protected the court, it will, also, ^,ose who act under its authority. The writ, on its face, showed the order of court and the affidavit on which the order was made.
    “ As long as an execution founded on a judgment exist, it 1 protects those who act under it ;■ and if the execution be set ‘ aside for irregularity, no action will lie against the officer who c acted under it during its existence. The setting aside the ‘ execution and judgment, does not make the officer a tres-, ‘ passer by relation.” Ives v. Lucas et al., 1 Car. & Payne, 7 Eng. Com. Law Rep. 298, vol. 11.
    
      “ Before an act can be a trespass ab initio, or by relation, the act making it such, must be a trespass.” Waterly v. Lockwood, 4 Day’s Rep. 257.
    The Court will observe, that this case differs from those in which the bond is, in its terms and conditions, in violation of or against some statute or principle of law — therefore void. Here, the bond and its terms, condition and form of execution are all agreeably and in conformity to the statute, and the defence is founded on matter dehors the bond entirely. This defence being entirely technical, and upon the strict principles of law, has been met with such principles.
    As to merits, the defendants certainly have none. The defendant, Lewis Robinson, was arrested to obtain payment of a debt and judgment justly due by him; when, instead of paying it, as we say he was able to do, and to prevent which, he and his brothers, in point of fact, voluntarily-enter into this bond, the terms of which were willfully violated. They had all the benefit of the bond, after obtaining which, they seek to avoid it by complaining of the arrest as illegal. If it was illegal, why ratify and confirm it by giving the bond, when the most speedy and certain remedy of habeas corpus was open to them. The defence made to this bond, I therefore say, cannot be sustained, either upon .the principles of law or justice; and we ask judgment thereon for the amount of debt, interest and costs of the original judgment.
    
      
      C.''C. Converse,,for. Defendants. .
    First:- . That nil debit is a good pled in an action of debt on prison bounds bond — the 'right, of action not arising directly',' out of the ' bond, but springing' frond ;the escape of. the debtor- ■ charged in execution;is shown .by the following authorities:. . Minton v. 'Woodworth, and Ferris, 11- Johns; Rep.- 475; which'.is á decision upon the .precise, point.. The 'case. oí..Lambooñ'. v. Bowen,'Tappan’s Rep. 290,' shows; that the same rule ,ob-' tains in thé practice of Ohio'.. . See; also, 10 Maine.Rep.'470, ' pér. Sprague, arguendo;
    Second: The bond must be -in -a sum; — neither more ñor less — but precisely, double,the sum for which .the party char- ■ ged in'..execution.stands corn mi tied. The .second, section of the' • “act regulating..prison bounds,” (Swan’s-Stat.'-735,).'de'cldre's" that the bond shall be in double^the sum for which the prisoner stands committed.”' The strict rigor with ■ which these "■ bonds, .which are the outer .walls of ,an enlarged prison, .'atéregarded bythis Court,.is shown by the caise of Lytle v.,Davis, .- 2 Ohio Rep. 277, which .holds. the bond-void, where'it recites .only that the debtor “ was arrested and in custody,” upon.exe- ' cuiio'n, and does not state; in the precise, language of the statute, that the- debtor, wás “ imprisoned.”' . ■ .
    .'" The cases from. Massachusetts Reports cited by plaintiff’s counsel .to sustain the bond, expressly declare thát-it is void as a statutory bond ;--but hold that it may be treated as a common law-instrument,.and presented in that aspect, sustain.a re.cove-' ry.' See, also, . Whitehead v. Varnúm, 14 -Pick.. 523. Now,' the' plaintiff does not sue as upon a common law instrument; ■ his declaration counts as 'upon a statutory bond, - and seeks a recovery upon it in that'character alone. - The demurrer, therefore, .as to. the third and fourth pleas.of the sureties, is riot well taken.. . • ' ■ '
    Third :■ The fifth and eighth joint -pleas of the two defendants,"Aaron and Isaac Robinson, depend upon the question whether a-ca. sa,, issued without a’compliance with the preliminary requisitions of the “ act to abolish imprisonment for debt/’ is void, or voidable only. If void, then the arrest and imprisonment of the other defendant, Lewis Robinson, the principal in the bond, was illegal, and the bond exacted from him and his sureties to obtain his discharge, was void — void as to him, by reason of the duress that extorted it; and if void as to him, void also as to his sureties, whose liability is not in chief, but incidental only to that of their principal.
    The first section of the ££ act to abolish imprisonment for debt,” is as follows: “ That no person shall be arrested, or ime prisoned, on any mesne, or final writ or process, issuing out £ of any court of law, or equity, in any suit, action or proceed- ‘ ing, instituted for the recovery of any debt due on any con- ‘ tract, promise or agreement, or for the recovery of damages £ foi; the nonperformance of any contract, promise or agree- £ ment, or for the recovery of damages in any action of tres- £ pass, or on any judgment or decree founded upon any such ‘ contract, promise or agreement, or damages for the nonper- ‘ formarme thereof, or on any judgment in (an) action of tresc pass, of for -consequential damages, except in casés here-, £ inafter specified.” Swan’s Stat. 646.
    The third section provides for the issuing of a capias ad respondendum' upon the affidavit of the creditor, his authorized agent, or attorney, charging the existence of any one or more! of the five causes of arrest therein enumerated.
    The fourth section provides, that “ on any judgment or de- £ cree, the court, when in session, or any judge thereof in va- £ cation,'may order a ca. sa. to be issued against the judg- £ ment debtor on the application of the judgment creditor, £ or his lawful .attorney, if such court or judge shall be sat-c isfied, by the affidavit of such applicant and such other £ testimony as he shall present, of the existence of either of £ the following particulars: ” And then follows an enumeration of the five causes of arrest, one or more of which must be charged in the affidavit of the judgment creditor, and established by .that and other testimony to the satisfaction of the court or judge, to warrant the order awarding the ca. sa.; Swan’s Stat. 641. The amendatory act of March 16, 1839, givés “ three additional causes of arrest to those mentioned in the act to which it is an amendment;” Swan’s Stat. 649. The legal effect of the two statutes, taken together, is now the same as if the three additional causes were inserted in the fourth and fifth sections of the original act.
    The ca. sa. upon which the defendant, Lewis Robinson, the principal, was arrested and imprisoned, and to procure whose enlargement the bond in. suit was given, was issued upon the affidavit of the plaintiff alone, without any other testimony. For this reason, it is contended that the bond is void, there being no such compliance with the statute as to authorize the issuing of a ca. sa.
    In the case of Griswold v. Sedgwick et al., 6 Cowen, 456, it is decided that if process, on the face of it; do not'authorize the arrest, then it is irregular and void, and can afford no justification to any of the parties concerned in the issuing, or execution of it. In such case, it is not necessary that the process should be set aside before an action can be sustained, nor is it material out of what jurisdiction it purports to have- been issued.
    The class of cases which frequently test writs, as to whether they be void, or only voidable, are actions against sheriffs or other officers, for escapes, or neglect to execute process. If the writ be voidable only, then the officer is not liable, as it is a protection to him until set aside; and, if afterwards set aside, cannot prejudice him for acts done under it, although otherwise as to the party suing it out.
    If, however, the writ be void, the officer is not bound to. execute it; for a vvrit void on its face is no protection to him, and he is liable, as a trespasser, for attempting to execute it. The case of Phelps v. Barton, 13 Wendell, 68, was an action against the sheriff, for an escape of one arrested, upon a ca. sa. The question in the case was, whether the writ was authorized by the non-imprisonment act of New York,
    (identical in its provisions with our present statute,) and the Court held that it was not, and that, therefore, the sheriff was not liable — the writ,' of course,'being held to be ¿bsolutély. v°l(l' : ?ee5 also) ex parte H,aynes, T8.Wendell; '611Brown■ HutcMnson¡!9 Johns.' Rep. ,75 ; .Grummon v. Raymond et al'., I'1 Conn. Rep. 40; Par melee' v. J-Rtchcock, 12 Wendell, 97; Earl v. Camp, -16 Ibid. 562; .Amfis v. Webber, 8 Ibid. 545 ;■ ’Vosebergh v. Welch,■ 11. Johns.' Rep. 175 - Curry V.Pringle, Ibid. 444; Luddington.v. Peck, 2.Conn, Rep. 700; Gold v. Bissell, 1 Wendell, 210; Rogers v!. Mullenor, '6 Ibid. 597; Savacóol v. Boughton; 5 Ibid. 170. ' . ■ ' ' .
    The case of Norton v. Danvers, 7 Dunf. &. East. 371, decide.d by the Court of King’s'Bench, is ah'adjudication, that .a writ■ issued against the prohibition of a statute is. absolutely void'.' , . '¡,- •- ' : , ' ,
    By,the statute of 37-Géo. ni., chap.'45, for restraining, for a limited time, payment of cash, by the Bank-of England, it is enacted that no'person Shall be holden to bail; unless the ■affidavit .made'for that -purpose, ’ ‘contain not only every thing" .required, by the act of Geo. f., chap. 29, but also state, , “thát ‘ no offer has be.en made to'pay the sum of money sWorn to, in ‘ notes, of. -the bank.”- A capias ad respondendum was issued against, .the defendant,' upon an affidavit,, riot containing the statement required, by this- statute. The defendant, however, .was -never arrested' under the writ •;■ but, upbn being informed 'that the writ'had been taken'out against, him, voluntarily gave.a bail bond. , Lord Kenyon,. C. J.: “ If the defendant had been. ‘ actually; under-arrest at. the time, his consent .to give a'bail ‘.bond would not have been binding on him,'because it might c be considered ás given Under duress; but- here, he voluntarily c gave the' bail' bond, and oii that ground only my opinion is.. •'c founded'.” •. • , , . - -' . •
    •' The case of. Aikins v. Richardson, 15 Verm. Rep. 500,. is a case, in principle, perfectly analogous .to the one'now. before the Court. It was, a s'cire facias against the defendant, as bail, for one Ithiel Richardson, bn two writs of attachment. The defendant pleaded that the original actions were founded on contracts, made and entered into, after the first day of January, 1839; and that the plaintiff did not, at the time of praying out his writs of attachment, fde with the authority issuing the writ, an affidavit stating that he had good reason to believe that the said Ithiel S. Richardson was about to abscond from the State, and had secreted about his person, or elsewhere, money or other property. Replication, that the plaintiff did file such affidavit, concluding to the country.
    On the trial, the plaintiff offered in evidence an affidavit, made by him, and filed with the justice who issued the writ — of which affidavit, the part relied on by the plaintiff as sustain] ing the issue, is as follows: “ That, in my belief, Ithiel S. ‘ Richardson, now in Chester, in said county of Windsor, rep- ‘ resented as late resident of Albany, in the State of New York, ‘ is about to leave this State; and that, from the best informa- ‘ tion I have, I verily believe he has money secreted about his ‘ person, and is also possessed of goods, wares and merchan- * dise, as of his own property,” &c. To the admission of this affidavit the defendant objected, and the same w'as rejected by the Court. There being 119 other testimony, the jury, by the direction of the Court, returned a verdict for defendant.
    After verdict, the plaintiff moved the Court to render judgment for him, non obstante veredicto; which motion was overruled, and judgment rendered by the Court for the defendant. To both rulings of the Court, the rejection of the affidavit, and the refusal to render judgment non obstante veredicto, the plaintiff excepted.
    But the ruling of the Court was sustained, and judgment again rendered for the defendant.
    In the case of Smith v. Scott, in error, in the Supreme Court for Athens county, at the November term, 1844, before Judges Wood and Birchard, it was decided that a' ca. sa. issued without affidavit, “ and other testimony,” was absolutely void. 2 West. Law Journal, 405.
    The fifth and eighth pleas of the sureties must, therefore, be sustained.
    
      Fourth: Assuming, then, that a writ, issued against the express prohibition of the statute, is void, it follows that the sixth plea, setting up that the ca. sa. did not recite or show any' order made by the court, or any Judge, upon affidavit and other testimony1 authorizing the issuing of the writ, must be sustained; for it is a general rule, that a writ of execution, to support itself, must show that state of things which authorizes its issuing. Hence, when a ca. sa. went out, as of course, all that it was necessary to recite in the writ, was the recovery of the judgment. That recital, however, was essential.' Without it, the writ was void on its face. Now, since something more than a judgment recovered is required before the writ can issue, it must show a compliance with all these additional requisitions, or it is void on its face. These prerequisites are now made, by law, just as essential to the validity of the writ as -the recovery of the judgment itself. The one can no more be dispensed with than the other.
    The case of Carter v. Drake, 10 Wend. Rep., 619, referred to by the. plaintiff’s counsel, has no application to the case now before the Court. It was not a writ issued under the statute. It was a capias ad respondendum — not final process; and the suit being an action on the case for seduction, there was an application, according to the English and New York practice, wholly independent of the non-imprisonment act, for an order to hold the defendant to bail on mesne process. That it was not an application, under the statute, is clear; for the statute does not require a Judge’s order to hold to bail, on a capias ad respondendum. It issues upon affidavit alone. But, even in that case, hear what the Court say.— Savage, C. J.: “ It is c usual and proper to indorse the order to hold to bail on the * capias, but it is not indispensable that it should be so indorsed. ‘ It may be in a separate paper, and provided the authority 1 exists, and is in possession of the officér or under his con-c irol, the defendant is properly held to bail, whether it be in-1 dorsed on the writ or not,”
    
      A writ- of capias ad satisfaciendum, therefore, not reciting the proper order founded upon the affidavit and other testimony, as required by the statute, being void, the sixth plea is- sustained.
    Fifth: The seventh plea of the sureties and the third plea of the principal, set up, that the principal was imprisoned by the plaintiff, until,, by the force and duress of imprisonment, he and his sureties made and delivered the writing set forth in the declaration.
    The duress of the principal, avoiding the bond, as to him, also avoids it as to his sureties, whose liability is not in chief, but incidental only, arising out of and dependent upon that of their principal. Without a liability of principal, there cannot, ex vi termini, be a liability of surety.
    We are aware there are contradictory decisions on this point, but the reason why it has ever been held, that the surety could not, under such circumstances, avail himself of the duress of his principal in discharge of the bond, was, that it imported a consideration, and he was estopped from averring a want of consideration. But, in Ohio, this reason no longer exists, and the defence may, therefore, well be made.
    And so, too, in the other States, the rigid rules of. the common law, on the subject of consideration, are giving way, and hence the recent and better American authorities permit the surety to set up the duress of the principal. The case of Fisher v. Shattuck et ah, 17 Pick. Rep. 252, is directly in point. It was an action of debt on a bond given by the defendants — ■ the one as principal, the other as surety — upon the complaint of the plaintiff, made under the bastardy act. The defendants pleaded: 1. Non est factum. 2. Duress of the principal; to which the plaintiff replied, and the defendants demurred generally. The demurrer to the replication raised the question, as to the sufficiency of the plea of duress. The counsel claimed, that the duress of the principal did not discharge the surety, and referred the Court to the case of Huscombe v. Standing, Croke Jac., and to Bacon’s Abrig., the same authorities relied upon by the. plaintiff’s counsel, in the case now before the Court.'• Shaw, C. J., delivering the opinion1 of the Court, says, (p. 253,) that, “ upon' consideration, the opinion ‘"of-the Court.is, that, the plea-of -duress is. a good bar for both' ‘ defendants.” And again, (p. 254,) “ The order requiring the ‘ party to give bond, was void; .the order 'to hold' the defend- ‘ ant in -custody until he gave bond, was erroneous and void, ‘ and, therefore, the bond was given under duress.”
    So,.also, thñ case 'of. Wldlefield' v: Longfellow et al.} 13 Maine. Rep. 146, was an action of-debt,- on a bond, executed 'by- Longfellow as' principal, -and th'e o.ther. defendants as sureties,-, .conditioned to. pay-the lying-in charges, &c., under the bastardy fact. The general issue was pleaded and joined, and a .brief, statement,,- (ia substitute, under-'.the statute of Maine, for a special plea,).-was filed, ■ alledging that the; bdnfl'was obtained froth Longfellow by.duress of..imprisonment and threats, of - the' same’. The Judge,, who tried the case, having - refused to instruct the jury, as asked for by the defendant,.and there being a verdict for the plaintiff, the defendant -excepted.. '.Weston,C.- J., says,’ (p. 150,) .that' if Longfellow■“ did- not execute the ‘ bond.in suit freely,' but, through' fear of unlawful imprison- ‘ merit, he acted under the influence of such moral compulsion ‘ as constitutes duress.” . The exceptions 'were sustained and a new trial awarded, that.the question,'-.whether,Longfellow did act freely.or<■ unfler fear-of unlawful imprisonment, might be distinctly presented to a jury, for determination.. ' ••
    • The,ca.se of Commonwealth v.'.Canada, 13 Pick.-Rep. 86, was a' scire facias against bail in a.recognizance, alle'dging a forfeiture, by-, reason of the avoidance.. óf the principal. .The recognizance having been illegally taken, was, by the Court, held void, and. judgment rendered for the defendant, the surety. ', ' , - ' . - • ■ . . '
    In the case of The United States v. Tingly, 5-Petér’s Rep. .115.,.the Supreme Court of the United States, where an official bond, variant from that .prescribed by lavy, was exported, by th.e Secretary of the-Navy, as,a condition of a purser’s'remaining' in-office, decided — 'Mr. Justice Story delivering the opinion of the Court — that the bond'was'illegal and void,'as to thé ties, as well as to the principal. '. _ - -'
    In the case of Cordis v. Sager et al., Í4 Maine- Rep. 475, it was declared by the Court, that the'defendants the sureties' as well'as-the principal — are not estopped' by the recitals in the .bond, if obtained by’duress of the principal. ’1 ’ ..- ■ ■
    The'case o?, Aiken- v. Ricliardson, 15 Vermont Rep. 500, already cited-'upon another point,. being an action against a; surety, is,, also, applicable to this branch of'the case. ■
    .In Thornhill v. Christmas, .10 Robinson’s La. Rep. 543,. it was decided, that .the surety in á bond,'itaken under a-.writ of" arrest, cannot bé made liadle, where'the Writ-was illegally-is» sued; ■, ,.
    ■ The cnse oi Thompson v. Lockwood, '15 Johns. Repl -256, • presents the direct question, as to the liability of- a surety upon a prison bounds bond, Which, by reason of the duress, of the . principal, is void as to him. In delivering,the opinion of the Court, Spencer’, 'J.,' after referring to the case, of Huscombe v. Standing, in- Croke James, (already mentioned' as the only English case relied upon'by the present plaintiff, sáys': "“As a ' ‘ general principle, it cannot be .controverted, that if a. bond be ’ ‘ obtained from' A and-B, by duress against A, B cannot plead £ the duress .against, A to invalidate-the bond; as against him.‘This, however, is applicable-to cases depending on common £ law principles, and where there is no statutory-provision inter- £ posed'. Sheriffs, can .take no bond, .or-other security,.'in £ matters relating to the- execution of their offices, but only to ‘ themselves, and- by the name of thfeir office, with such condi- ‘ tions as the law "prescribes; and.any obligation taken by a £ sheriff in other form, by color of his office, is declared void; £ 1- N. R. L. 423, 424. And the act relative to goal liberties, £ (1 N. R. L.. 427,) making it the duty of sheriffs to let pris- £ 'oners, ■ on civil process, go at large -within the limits of the ,-£ liberties, on giving security, is a mere modification and exten- • £ sion of the former act. Perhaps, as the bond here taken was-c jn the terms prescribed by the act, it cannot be said to be £ void, as' being taken colore officii. But the taking the bond c wag un]awfuj} an(l the condition itself was void, Lawrence £ could not remain a true and faithful prisoner, upon executions e on which the sheriff had no right or power to detain him. c The bond had no more validity than if the sheriff had taken £ it without any execution in his hands against Lawrence. A £ condition that a man shall not plow his land, or go out of his c house, being in restraint of a common right, is void; Bacon’s £ Abr. Oblig. E. 3. Conditions in restraint of trade have been £ adjudged, repeatedly, to be void; and, among other reasons, £. as against the public good, by depriving the party of his means c of livelihood. Bacon, tit. Bond, K.”
    But, that the obligors are not estopped, if the bond were obtained by duress, is clear. It was so held in the case of Cordis v. Sager, 14 Maine Rep. 477, already cited. The truth is, the doctrine of estoppel has its appropriate application only to deeds that are well executed. It has no application to deeds, the execution of which is illegal or void'; for to apply it to such cases would be to bind a party by a void act.
    At any rate, in so far as the recitals relate to the consideration upon which the bond is founded, the statute submitting the consideration to inquiry override's the rule, and rids us of this odious thing of estoppel, which, as shutting out the truth, is disfavored of law. In this State the artificial rule yields to legislative enactment.
    But, independent of statutory aid, it has been expressly decided, that a prison bounds bond, reciting a ca. sa. when the arrest was, in fact, under a fieri facias, shall not estop the obligor from showing the fact, as against the sheriff or his assignee, and thus avoiding the bond. Miller v. Bagwell, 3 McCord’s Rep. 429 ; see, also, 3 Cowen & Hill; 2, Phillips on Ev. 1237, notes.
    Again: This is a joint action against three defendants; the principal and two sureties. The plaintiff must fail, therefore, unless he show a joint liability. Now, that the duress of the principal defeats the action, as to him, is admitted. It shows that he never was liable, jointly, with his co-defendants. In Eliot v. Morgan et al., 7 Carr &. Payne, 334; 32 Eng. C. L. Rep. 530, which was assumpsit against three defendants, Coleridge, J., says: “ Although the defendant, W., has admitted, ‘ by his separate plea, the joint contract on the record, yet if the ‘ other defendants succeed in showing that they are not jointly ‘ liable, the plaintiff must fail as to all; and it is competent for ‘ the two defendants, under their plea of the general issue, to ‘ avail themselves of the defence, that too many defendants had { been joined in the action.” So, also, Mott v. Petrie, 15 Wend. Rep. 317; Wolcot v. Canfield, 3 Conn. Rep. 198.
    The demurrer, therefore, as to the seventh plea of the sureties, and the third plea of the principal, is not well taken.
    Sixth: As to the tenth plea of the sureties, and fourth plea of the principal, alledging that the ca. sa., issued under a supposed order of Court, allowing the same upon the affidavit of the plaintiff, that the principal was about to remove his body out of the jurisdiction of the Court, and without any other cause or ground alledged for such writ, and traversing the charge contained in the affidavit.
    What has already been said in relation to the nature of a ca. sa., issued without other testimony, is applicable to this plea, and shows the writ void.
    Seventh: The last plea — being the joint plea of all the defendants — sets up that the ca. sa. has, since the appeal of this cause to the Supreme Court, been set aside and quashed, and also that the order allowing the same has been set aside, rescinded and vacated, by an order of the Supreme Court, duly made in the premises, which is still in full force and unreversed.
    The matters contained in this plea are a complete bar to the action, as well for the sureties as the principal. For, although a ca. sa., voidable for irregularity — not void — is, before it is set aside, a protection to the party suing it out, -as well as to the officer executing the process, yet, when afterwards set aside, it ceases to protect the party for any acts done under it while in force. The case, then, stands precisely as if no such , . . , , erroneous process had ever existed.
    The law is well stated in the opinion of the Court in Chapman v. Dyett et al., 11 Wend. 31, which was an action of trespass, for false imprisonment, against a party who had sued out a ca. sa. against the plaintiff, and caused him to be arrested. The writ being voidable, not void, was afterwards set aside. Savage, C. J., after stating that voidable process always protects an officer in acts done, while it is in force, although subsequently set aside, says: “It is true, as con- ‘ tended by the defendants, that when the arrest was made, £ no trespass was, in fact, committed; but the doctrine of tresc pass by relation is as well settled as any in the law, at least £ since the Six ■ Carpenters’ case. When the ca. sa. was set £ aside for irregularity, it ceased to be a justification to the par- £ ties guilty of the irregularity; as to them it is void, and as if e it had never existed. The arrest, therefore, by relation, be- £ came void and without authority, and the action of trespass £ was the proper action.” Judgment for the plaintiff. So in Coddrington v. Lloyd, 8 Adol. and Ellis 467; 35. Eng. C. L. Rep.; which was also trespass for an assault and false imprisonment, under a voidable ca. sa., sued out by the defendant against the plaintiff, under which the defendant was arrested, and which was afterwards set aside. The action was against both the party and the attorney who issued the writ.
    Lord Denman, C. J., says: “ The plaintiff here was arrested £ on a writ, which was afterwards declared by,the Court irregu- £ lar. It was, therefore, as' if there bad been none.” So also, Patterson, J.: “ The action lies against the party, because the £ process, when set aside, is as if it had never existed, and if f the party cannot justify under it, neither can the attorney.” The plaintiff had judgment against both defendants. See also, Hayden v. Shed, 11 Mass. Rep. 300; per Jackson, J., Haddington v. Peck, 2 Conn. Rep. 700; Barker v. Braham, 3 Wils. Rep. 368; the Six Carpenters’ case, 8 Coke 293.
    
      The quashing of the writ' and annulling of the order awarding it, left the plaintiff, therefore, without any authority whatsoever to sustain the arrest and imprisonment of the principal defendant.
    Again: It was not necessary that the defendants should have set up the quashing of the process and the rescinding of the order, to avail themselves of the defence- that the-writ was void. The authorities already cited'show, that when the writ is set aside, the parties stand as if it had never been issued. The order setting aside by relation, extends back to the issuing of the writ.. It enables the defendants to show what the law now adjudges to have been the true character of the writ when issued. It removes the obstacle in the way of showing that the writ was absolutely void. It is matter of evidence only. The rule is settled, that in all cases where the act done, after plea pleaded or suit brought, extends back by .relation to a period prior to the commencement of the suit; it is not necessary to plead it puis darrein continuance. Jackson v. McCall, 3 Cowen Rep. 75, is directly to the point. The defendant offered in evidence two sheriff’s deeds, for lands sold before the commencement of the suit, both of them, however, executed and delivered after issue joined in the case. The plaintiff objected that the deeds were inadmissible, except under a plea puis darrein continuance. Curia, per. Sutherland, J.: “ Admit- £ ting that, by relation, the deeds are to be considered as having £ been given at the time of the sale, does that dispense with ‘ the necessity of pleading the fact of delivery, according to its ‘ truth, puis darrein continuance? ' I am of opinion that it £ does. The defence relied on was the title acquired under the £ sheriff’s sale. When did that title vest in the defendant? £ is the point of inquiry. If before the commencement of the £ suit, it was available under the general issue : If after issue ‘ joined, it should have been pleaded puris darrein continuance, ‘ and the date, or. time of delivery of the evidences of title, is £ perfectly immaterial. The legal effect and operation of such ‘ delivery is the matter of defence, and not the instrument ‘ itself. The legal effect of the delivery then, in this case, -' having been to vest the title in the defendant by relation, as ( of the 2d October, 1818, the matter of defence did not arise ‘ subsequent to the joining of the issue, and need not be pleaded ‘ puis darrein continuance. I am of opinion, therefore, that the ‘ Judge erred in rejecting the sheriff’s deeds on that ground.” Under the principal here laid down, the legal effect and operation of setting aside the writ and order, is the matter of defence, and not the order setting aside. A plea puis darrein continuance, is not, therefore, essential to enable the defendants to avail themselves of what is now in law the truth, that the writ was void at the time of the arrest and imprisonment, and therefore void when the bond in suit was executed.
    The last plea is not, in form, a plea puis darrein continuance. That it is not such _ in substance, the case just cited clearly shows. It stands upon the record, then, as an ordinary case of an additional plea, filed by leave of the Court, setting up matter of defence arising before suit brought.
    Nothing but a plea strictly puis darrein continuance, both in form and substance, operates as a waiver. Even this rule is not without its‘exceptions, as shown by Rayner et al. v. Dyett, 2 Wend. 300.
    The defendants, therefore, insist upon all their pleas, and claim to shelter themselves from a recovery under any one of them which, in the opinion of the Court, may be found sufficient.
    I submit to the Court, that the demurrer is, in no respect, well taken, and therefore ask judgment upon it in favor of all the defendants.
    
      
       The law of Massachusetts as to the amount, &c. of the prison bounds bond, is as ours. Vide 14 Pickering, 523.
    
   Hitchcock, J.

A variety of questions are presented by the pleadings in this case; more, in fact, than what seem to the Court necessary for the disposition of the case. The action is upon what is usually denominated, a prison bounds bond. Previous to the enactment of the law to abolish imprisonment for debt, it was at the election of the judgment creditor to proceed against the property of his creditor by writ of fi. fa.' or against the body of his debtor by writ of ca. sa. But, since the enactment of - that law, judgments cannot be enforced by ca.' sa., except in certain specified cases; and an examination of the cases specified will show, that it is only where a debtor attempts to defraud his creditors, can he be arrested and imprisoned. This law is one favorable to the personal liberty of the citizen, and should be liberally construed, to effect that object. By this law, no process, either mesne or final, can issue against the body of a defendant, except in pursuance of an order previously made by the Court, or a Judge of the Court, , from which the process is issued. If it be issued without such order, it is vqid, as to all persons interested, except the 'officer to whom it is directed, and voidable as to him.

By the last plea filed in this case it appears, that the ca. sa. in virtue of which ‘Lewis Robinson was arrested and imprisoned, had been set aside and quashed, and that the order allowing the same, has been set aside, rescinded and vacated by an order of this Coxlrt. True, this was done subsequent to the appeal of the case now under consideration, and, strictly speaking, the plea embodying these facts should have been one puis darrein continuance. But the parties seem to have treated it as if properly filed, and it is met by a demurrer.

The question submitted to the Court is, whether these facts constitute a legal bar to.the plaintiff’s action? They show that the plaintiff has, without authority of law, caused Lewis Robinson to be imprisoned, and to procure his discharge, he, together with his sureties, were induced to execute the bond now in suit. The ca. sa. has been quashed, and, so far as the plaintiff is concerned, the case is as if none had been issued. The order, in pursuance of which it was issued, has been vacated. It is the same as if no order had been made. Where a debtor is legally imprisoned, he cannot be entitled to the privilege of the prison bounds until he has given bond to the credit- or, according to the provisions of the statute; and, if, in such case, he escapes, the bond is forfeited. But, where a debtor is. imprisoned by procurement of his creditor, acting without the authority of law, and to procure his .enlargement executes such bond, it seems to the Court, that.such bond must be held to be void. The facts set forth in this plea show, that the imprisonment was illegal, and, if so, the bond given to procure the enlargement of the prisoner cannot be enforced, either against him or his sureties. In the opinion of the Court, this last plea is a good bar to the plaintiff’s action.

We might stop here, but it may be well to consider for a moment, the other pleas.

The-first plea demurred to, is the plea of nil debit. Is this a good plea to an. action of debt upon a bond like the one now in suit ? We think it is. In debt, where a specialty is the foundation of the action, nil debit is not a good plea. But where the deed is only the inducement to the action, and. extrinsic matters of fact the foundation, as in the present case, or on appeal bonds and such like, then nil debit is a proper plea. 11 Johns. Rep. 472.-

The third plea is, that the. bond was taken for too small a sum; and the fourth, that- the sum was too great.

It seems to the Court, that neither of these pleas can avail the defendants. True, the statute requires that the penalty of the bond shall be double the amount Of the debt for which the prisoner is imprisoned. But it is not void, if a little more or less. If more, nothing can be recovered for a breach of the condition beyond the debt. If less, it certainly, can do the obligors no harm. ’ ’ ’ '

The fifth plea is, that no order was made by the Court, or any Judge thereof, upon affidavit of the plaintiff, &c., authorizing the issuing of a ca. sa., &g.

It seems to be admitted by the plaintiff’s counsel, that if the ca. sa. was void’ then the imprisonment was illegal, and the bond, of course, void; but it is supposed that the process is not void, unless the officer would-be a trespasser in -executing it. We understand the rule, so far as the officer is concerned, to be this: If the process is void, upon its face, the officer commits a trespass if he executes it; but if, upon its face, it is good, he will be protected, although the process may be avoided by extrinsic circumstances. But this case is not one in which the officer is concerned. It is the plaintiff in the execution who is prosecuting this suit. So far as he is concerned, the process may be void, although, being good upon its face, it would protect the officer. This plea shows, that the plaintiff caused a ca. sa. to be issued without any previous order of the Court, which order is indispensably necessary. It was issued by his procurement, not only without law, but in violation of positive law. The act was, on his part, an illegal act, and for an arrest made under it he would be chargeable with trespass. An arrest was made. So far as the plaintiff is concerned, it was illegal; and, to procure the enlargement of the prisoner, the bond in suit was executed. Under these circumstances, the plaintiff cannot avail himself of the bond thus illegally procured.

The next plea in order is, that the ca. sa. did not recite or set forth any order made by the Court, &c.

Such recital is not necessary. Before a ca. sa. can be issued, proof must be made to the Court or Judge, by the affidavit of the plaintiff, and by other evidence, that the case is within the exceptions in the statute;. whereupon an order is made for the issuing of the writ. This does not, however, constitute any part of the writ; nor need it be recited therein, nor indorsed thereon.

The eighth plea is, that the ca. sa. was issued under an order, made by the Court, solely upon the affidavit of the plaintiff, without any other testimony, &c.

It has frequently been decided by this Court upon the circuit, that a ca. sa., so issued, was void as to all persons, except the officer to whom directed. It was so held in this case, when the order of the Court of Common Pleas was before it on certiorari. If this is a correct construction of the law, a ca. sa. so issued, would not protect a judgment creditor when sued in trespass, nor can such creditor avail himself of a “ prison bounds bond,” given to procure the enlargement of a prisoner arrested under such process.

The seventh plea, is a plea of duress.

It is admitted by the plaintiff’s counsel, that this plea, as filed by the principal in the bond, is good; but it is insisted, that although the principal may avail himself of this defence, yet, that his sureties cannot — that they will not be permitted to plead the duress of their principal; and many authorities are cited to sustain this position. Upon this point, however, the authorities are contradictory; and it seems to us that those opposed to this principle are most consistent with reason.

The tenth plea sets forth, in substance, that although the order for the ca. sa. was based upon the affidavit of the plaintiff, that the said Lewis was about to remove his body out of the jurisdiction of the Court, whereas, in fact, the said Lewis was not about so to remove his body.

The object of this plea is, to put in issue the question of fact, whether the said Lewis was about to remove. The defendants cannot avail themselves of this defence. True, the order for a ca. sa. is procured upon an ex parte application of a plaintiff or his attorney, yet, when once procured, it is so far conclusive that it cannot be collaterally impeached.

Upon full consideration, the Court are of opinion that the demurrer is well taken to the third, fourth, sixth and tenth pleas; and the first, fifth, seventh, eighth and last pleas, are sufficient in law to bar the plaintiff’s action.  