
    Lyon vs. Ide.
    
      Windham,
    
    August, 1790.
    A person acting un,der authority must strictly pursue his authority.
    If the condition of a bond, given under the statute, for admission to the liberties of the prison, contain any thing more than is provided by tile statute, or materially vary from the condition prescribed, it is void.
    THE plaintiff declared as assignee of the Sheriff of Windham, on a bond given to the Sheriff by the defendant in the penalty of ¿€200, that if one Joseph Bullen, then a prisoner confined for the plaintiff’s debt, should behave as a good orderly prisoner ought to behave, and should pay to the gaoler one shilling and six pence per day for his victualling, and pay the gaoler’s fees, and not depart said prison without the leave and liberty of the Sheriff, then, &c.
    Bradley, for the defendant,
    pleaded three several pleas in bar.
    To the first and third pleas there was a traverse and issue; to the second, which in substance was, that the bond was taken for admitting the said Bullen to the liberties of the prison — that it was taken by the Sheriff in his own wrong colore officii, for other things than the law allows, viz. for the prisoner’s good behaviour — for his diet, and to secure the gaoler’s fees, and that he should not depart without leave of the Sheriff, &c. There was a demurrer and joinder.
    
      Bradley, for defendant.
    
      Knight, for plaintiff.
   Chipman, Ch. J.

delivered the opinion of the Court. This is an action ©n a bond taken by a Sheriff in the execution of his office, for admitting a prisoner, confined in gaol for debt, to the liberties of the gaol yard, under the statute regulating gaols and gaolers, and by the Sheriff assigned to the plaintiff, the original creditor.

As the bond and condition are inserted at large in the declaration, and as the final recovery, in this action, v/ill depend on the legality of the bond, it will be unnecessary to consider the defendant’s plea: For on this demurrer, if the declaration be/iot good, or in other words, if the bond be illegal, the plaintiff cannot recover in this action; and nothing is disclosed in the defendant’s plea, that js not apparent on the face of the declaraticjn.

A person acting in his private capacity, may annex what condilion he pleases to his agreement, so that it is not malum in se, or prohibited by some positive law. But a person acting under authority, must pursue that authority, strictly; nor can he act by virtue of his authority, and in his private capacity in the same instrument. I however, at present, extend this no farther, than to ministerial officers of the law. Any person imprisoned for debt, may be admitted to the liberties of the gaol-yard, on procuring sufficient bonds, to indemnify him against an escape, which might, in such case be made. For a prisoner, admitted to the liberties, can escape when he pleases. The law cannot mean in this case, to indemnify the Sheriff, or the gaoler, who is his deputy, for any thing furnished the prisoner on a private agreement. Neither the Sheriff nor the gaoler are obliged to furnish prisoners with diet, nor is the prisoner obliged to receive his diet from them or either of them. So far from this, that the statute before mentioned expressly declares, that all prisoners thall be allowed to provide, and send for their necessary food, as they please.

No officer can be allowed to take a bond, other than such as is expressly allowed by law. Such a practice, were it to obtain, would open a wide door to extortion, and the most grievous oppression; and an officer is clearly punishable, who shall, under colour of his office, and for doing that which the law obliges him to do, as to take bail, &c. take money from a prisoner other than legal fees, or any service, either for his own benefit, or that of a third person; and any agreement, extorted for such purposes, must be illegal and void.

The bond under consideration is of the same nature, and is grossly oppressive. There is not one Word about indemnifying the Sheriff, the only thing required by the statute. Instead of that, he is first bound to his good behaviour; and though he ought to behave well, the Sheriff had no right to demand it of him under a penalty. 2. He is bound to pay the gaoler one shilling and six pence per day for his victualling — a most extravagant price in this country. This is directly in face of the statute, as it is a mean of obliging the prisoner to take his food of the gaoler only. 3. He is obliged to pay the gaoler’s fees. The gaoler, who took this bond in the Sheriff’s name, had a right, if fees were due, to take security for their payment ; but if he agreed to wait, and take them at a future day, it was a private concern, which ought not to have been put into this bond, taken officially. He might as well have taken security for any other debt, in the same way. 4. He is bound not to depart without leave of the Sheriff. The Sheriff is authorised to detain the prisoner, until he pay and satisfy the debt for which he stands committed, and lawful fees. When he has done that, though in close confinement he may demand his liberty, and if not presently set at large, an action lies against the Sheriff; and yet, in such case, if this bond be good, should he depart without leave of the Sheriff, he forfeits ¿£200.

The bond is, therefore, totally bad, as being against law, the common principles of right; and in every view highly oppressive. There must therefore be

Judgment for the defendant.-  