
    *George Gilmore v. Daniel Lewis.
    The detention, arrest, and conviction of a felon, or the discovery and return of stolen money, is, in general, a good consideration to sustain a promise of reward.
    "When the condition is complied with, he who performs it becomes the promisee; the legal interest becomes vested in him, and he has a right to cfeúm the reward.
    It is the civil duty of every individual to use exertion to effect the detection and punishment of crime; but the law imposes no obligation on the private citizen, unless called on for assistance, by its ministerial officer.
    It is an indictable offence, in public officers, to exact and receive any thing more for the performance of their legal duty than the fees allowed by statute.
    A promise to pay them extra compensation is absolutely void.
    A reward -offered for tbe apprehension of a thief, and money, can not be claimed by a constable, who arrests the thief by virtue óf a warrant delivered to him for that purpose.
    This was au Action of Assumpsit, from the county of Fairfield. The declaration, in this case, contains but a single special count, in which the plaintiff declares, that, heretofore, to wit, etc., the defendant and one Brooke, not served with process, printed, published and circulated, a certain advertisement, that their store had been broken open, and about soven hundred dollars, in money, stolen therefrom ; and, by the said handbill, or advertisement, the said defendant and tho said Brooke, under the name and style of Brooke and Lewis, did then and there promise, and undertake, to pay the sum of three hundred dollars to any person, or persons, who would apprehend the aforesaid thief and money, or two hundred dollars for the cash alone, and one hundred dollars for the thief alone.
    The plaintiff avers, that, afterwards, to wit, etc., confiding in the said promises and undertakings, he sought out. and discovered, that one James Nelson was the thief ; and,'to effect his arrest for the commission of the crime, he applied to a justice of the peace, made oath to the fact, and obtained a warrant, which was delivered to the plaintiff, he being one of the acting constables of Walnut township, in said county ; and the plaintiff, afterwards, by virtue of said warrant, ar282] rested the said ^Nelson, who was duly convicted, and the money restored to defendant and -Brooke, of which premises the defendant and Brooke had notice, and thereby became liable, and promised, etc.
    To this declaration tbe defendant demurred, generally, and asks the judgment of the court, whether the case made entitles the plaintiff to judgment.
    H. H. Hunter and H. Stanbery, in support of the demurrer.
    In behalf of the defendant, we insist, that the plaintiff is not entitled to recover upon the case made in the declaration—
    First: Because, on general principles of law, the plaintiff, being, as the declaration avers, a constable, and having made the arrest “by virtue of a warrant” placed in his hands, as such constable, to be executed, it would be against good morals, and tend to oppression and malversation in office, to allow him to recover.
    Second : Because it is made a criminal offence, by our statute, (Swan’s Stat. 242, sec. 58,) for a constable, or other judicial or ministerial officer, to ask, demand, or receive, any fee or reward, to execute or do his duty, other than such as is allowed by law.
    But, aside from the statutory provisions just referred to, the same result equally follows on general principles of law.
    .The principle is well stated in the case of Bridge v. Lage, Cro. Jac. 103, which is, perhaps, the earliest case to be found in the reports. It was an action by an under sheriff, on a promise by the defendant to pay him a reward to execute a writ of elegit. The principle is thus stated; “ That it was not any consideration to maintain the action, for the sheriff, by his duty and oath, ought to execute the writ, and, therefore, to have a promise of consideration for executing it is not lawful, as it is quasi extortion, and, therefore, ill and unlawful.”
    
      The same principle is laid down and more extensively discussed in Stolesbury v. Smith, 2 Burrows, 924.
    *Lord Mansfield — It is oppression to take money (by a sheriff) [283 for doing what he ought to.
    Justice Dunnson — Never saw such a demand stated in a court of justice.
    Justice Foster — It would be a great inlet to oppression, if established as legal.
    Justice Wilmot — Thought it a shameful and scandalous action. It would be a strange thing to assist him (the sheriff) in establishing a contract for which he would have been punished, if indicted, for extortion. An officer ought not to take money for doing his duty.
    In Colligan v. Brown and Halstead, 1 Cane’s N. Y. 103, the same doctrine is reviewed and discussed ; also, 13 Wend. 43.
    John T. Brazee and T. Ewing, for plaintiff, contra.
    The objection to the case made in the declaration is, that, to permit the plaintiff to recover, would invade both that principle of the common law, and that provision of our statute, prohibiting officers from taking any but legal fees for the performance of their duties. If the case made be obnoxious to this objection, we admit the demurrer to be well taken. Had the defendant, after the commission of the offense, himself discovered who the depredator was, and made complaint against him, and procured a warrant for his arrest, and delivered that warrant to the plaintiff, to be executed, as constable, and promised him a reward of $300 for its faithful execution, and had an action then been brought to recover that sum, the case would have been exposed to the objection made, and analogous, in circumstances and principle, to the different cases cited by defendant’s counsel.
    But this is not the case made. The defendant published to the world the fact that his store had been broken open, and seven hundred dollars in money stolen therefrom ; and undertook to pay any person who would apprehend the thief and money the sum of three hundred dollars. The defendant has *here used inappropriate [284 and unapt language to express his purpose and intention, although that purpose and intent is clear and obvious. The statement in the declaration shows that, at the time of the making and publishing of the advertisement, it was not known to the defendant who the depredator was. His object in making the publication was to offer a sum of money that would insure the discovery of who the thief was, his apprehension and punishment, and a return of the money stolen.
    
      The declaration avers, that the plaintiff, by diligent inquiry and attention, searched out and discovered that Nelson was the thief; that he then went before a justice of the peace, and made an affidavit, ac cusing him of the crime; that the justice, thereupon, issued a warrant, and delivered the same to the plaintiff, as constable, to be executed. Up to this time, it is admitted, by opposing counsels, that the plaintiff acted in pursuance of the advertisement, in hopes of legally entitling himself to the reward; that he did those things which, by law, it was not his legal duty to do, as constable. ' The warrant, however, being delivered to plaintiff, as constable, to be executed, and, infaet, executed by him, as constable, it is claimed, destroys the right of the plaintiff to recover, although it is admitted, that if the plaintiff had procured any other officer to serve the writ, and had the arrest, conviction, and return of the cash followed in the same manner, the plaintiff would have been entitled to the three hundred dollars.
    The error into which the counsel for the defendant has run, as we apprehend, is in supposing that we claim the three hundred dollars for serving or executing the writ as constable; such is certainly not the case. The plaintiff was entitled to his legal fees for the service of the writ, without any regard to the proceeding resulting in the conviction of the accused, and the return of the money. And this official act of his, in our opinion, neither makes his claim to the reward any better, or any worse, than it would have been had the same official act been done by some other official personage. This official act being done by the plaintiff was as beneficial to the defendant as though it 285] had been done by any other; and it ought not, ^therefore, to vary or change the rights of the plaintiff. The plaintiff has entitled himself to the reward, as we claim, by the acts that he has done in his individual and private capacity ; and the case mide is clearly misapprehended, in supposing that the reward is claimed by the plaintiff as additional to the legal foes for executing the warrant. Nor is there any thing in the case made, as we apprehend, against good policy and sound morals, in permitting the plaintiff to recover. It is the interest of the public, when a depredation has been committed, that the offender should be sought out and punished. It is know.n that the officers of the country are the persons, of all others in the community, whose habits of life, and whose leisure, enable them most successfully to engage in the business of searching out and detecting offenders. But should it be decided that an officer is cut out and prevented from recovering a reward, under the circumstances here existing, it is much to be feared that the incentives to the detection, and apprehension of depredators would be withdrawn from the community.
   Wood, Judge.

No doubt is entertained by us, as a general rule, that the detection, arrest, and conviction of a felon, or the discovery and seizure, or return, of stolen property, is a good consideration to sustain a promise made on such condition. When the condition is complied with, he who performs it becomes the promisee ; the contract is then complete and executed on his part; the legal interest is vested in him, and he has the right to claim the reward, as the benefit of his exertion.

So long as the administration of criminal justice is necessary to secure the peace and safety of society, such contracts should be regarded with a favorable eye, They often stimulate to exertion, where civil duty is insufficient, in obligation, to ferret out crime, hunt down the offender, and bring him to public justice. As a civil duty, every individual is bound to use reasonable exertion to effect the punishment of crime ; but the law imposes no such obligation on the private citizen, unless called upon for assistance, by its ministerial officers; and ^an offered reward is, frequently, the only hope of remuneration [286 for a meritorious service rendered to the commonwealth.

But public officers, on whom the law casts this duty, from whom it requires exertion, and to whom it affords adequate compensation, occupy different ground.

It is an indictable offence, in them, to exact and receive any thing, but what the law allows, for the performance of their legal duties. A promise to pay thorn extra compensation is absolutely void, under the statute of Ohio. Such promise could not be enforced at common law, being against sound policy, and, quasi, extortion. English judges have declared, that such claims by them are novel in courts of justice, and that actions founded on such promises are scandalous and shameful. 2 Burr. 924; and in the Court of Errors in New York they meet with no more favor. 15 Wend. 46.

While the counsel for the plaintiff does not controvert these principles, their application to the case at bar is strenuously denied. It is said the three hundred dollars is not claimed for executing the writ, as constable, by the plaintiff. For that service he was entitled to his legal fees, without any regard to the proceeding resulting in the conviction of the accused, and the return of the money, and that this official act of his neither makes his claim to the reward better or worse than it would have been, had the same official act been done by some other official personage.

But it will be seen that this view of the ease can, by no means, be sustained. It is not the case made by the declaration. The promise of the reward, as laid, is for the apprehension of the thief and money ; and this arrest of the thief, and seizure of the money, are averred to have been made by the plaintiff, by virtue of a warrant delivered to him as constable. The promise is, therefore, illegal and void. True, it is stated the plaintiff searched out the thief, and ascertained where the money was, and made the oath on which the warrant issued ; but, for this service, no promise of reward is laid. It is for the apprehension of the thief, and seizure of the money ; and as this was done in 287] virtue of his office, the plaintiff must be content *with his legal fees, and the reflection that he has done the state some service.

Demurrer sustained, and judgment for defendant.  