
    Given against Driggs.
    A bond to indemnify against an .escape, given after an escape%uffered, is good. A judgment by default is not in itself fraudulent, and unless fraud be shown is within a condition to bear harmless from what the plaintiff might be obliged to pay “after due proceedings had against him, and adjudged and decreed.”
    Debt by the sheriff of Albany, on a bond of indemnity dated 22d April, 1798. The declaration was in the common form.
    The defendant in his plea, set forth the condition of the bond, reciting, that on the 10th March, preceding, two writs of copias ad satisfaciendum had been issued out of the supreme court against George Driggs: one, at the suit of Wendover and J. Hopkins, for 805 dollars: the other at the suit of B. Dudley, for 126 dollars, returnable on the third Tuesday in April in the same year; that George Driggs had been taken, on both these suits, by S. Hamilton one of the plaintiff’s deputies; that the condition of the obligation *was, that if the defendant should pay [*451] all such sums of money, charges and damages whatever, as the plaintiff should be obliged to pay, after due proceedings at law had against him, and adj udged and decreed by reason of the aforesaid talcing of the said George Driggs on the said writs, then the obligation to be void; otherwise, &c. The defendant then pleaded the statute for preventing vexatious and oppressive arrests, and, that the plaintiff took the writing aforesaid for ease and favor to George Driggs, and by color of the plaintiff’s office.
    2dly. That the plaintiff had not been damnified. To these pleas the defendant replied,'
    1st. That at the time when the bond was given, George Driggs was not a prisoner of the plaintiff, nor of Hamilton, on the writs of ca. sa. but was then at large, and discharged from his imprisonment thereon; and that the bond was given to indemnify the plaintiff for taking George Driggs, and discharging him from the arrest and imprisonment aforesaid, traversing the ease and favor.
    2d. That in April term, 1799, Wendover, survivor of Hopkins and B. Dudley, impleaded the plaintiff for taking and arresting the said George Driggs, and permitting him to go at large; that in July term following, judgment was obtained against the plaintiff, for the debts and costs in the above suits, averring, that he is bound and charged to the satisfaction of the judgments, and that he was damnified by the suits and judgments thereon.
    Rejoinder; that the plaintiff, fraudulently and deceitfully, and with intent to deceive and defraud the defendant, permitted the said judgments to pass against him by default, and that he fraudulently and deceitfully neglected to make spry defence to the said actions.
    Surrejoinder; that the plaintiff did not fraudulently and deceitfully neglect to defend, nor did so suffer the judgments to pass against him by default and issue thereon.
    The cause came on for trial before Mr. Justice Thompson, at the Albany circuit in September last, when the counsel agreed that the only two points in question were, [*452] *lst. Whether the bond in question was given for ease and favor and deliverance of the said George Driggs, contrary to • the form of the statute, and, therefore, void? *
    2d. Whether the judgments aforesaid were entered through fraud and deceit of the plaintiff, or were negligently and fraudulently suffered or not ?
    The plaintiff proved that judgments in the two suits of Wendover and Hopkins, and of Dudley, were duly obtained, and executions regularly sued out against George Driggs. That Driggs was taken upon them some time in March, 1798, by one of the deputies of the sheriff, named Hamilton, and that, at the time of the arrest, many threatening observations were made, by the defendant and Driggs, in case the sheriff should detain his prisoner in custody, as they insisted he was not liable to be held, having lately obtained his discharge under the insolvent act; that at the same time, theie was some conversation about giving a bond to try the validity of the arrest, and secure the sheriff in case Driggs should ultimately be liable to the abdve executions: that directions were given to one Frazer, the attorney in the suits against Driggs, to prepare such a bond; but before it was finished, the defendant told Frazer he need not go on, for that he (the defendant) would have nothing to do with it; that since the arrest, Hamilton had declared he had permitted Driggs to go at large ; that Driggs went a journey to the westward, and the defendant said he would see him forthcoming in ten days; that Frazer did not consent to Driggs going at large, but on being asked, whether he could be regularly set free, on some person’s undertaking for his return into custody, Frazer answered, so it had been practised by others; that Driggs had been seen, after coming back from the westward; and that Hamilton had been heard to say, Driggs had returned according to his agreement; that on the 23d April, 1798, the bond, on which the present action was instituted, was drawn by Frazer, at the request of Hamilton and the defendant, when Driggs was not present, and that it was executed by the defendant at a house to which he and Hamilton went for that purpose; that the arrest took place on the 10th or 12th of March preceding, "^between which time, and the [*453] 23d of April following, when the bond was executed, Driggs had been frequently seen in the streets of Loonenburgh, where he and Hamilton resided; that previous to the execution of the bond, Joseph Hopkins consented to its being given, and told Hamilton he would be safe if he took it; that, at the time of its execution, the defendant said he was not afraid of the bond, as he was positive his son’s discharge was good; but, that he did not wish the sheriff to be hurt. The plaintiff here clcscd his case.
    The defendant gave in evidence, by a witness present when the arrest was made, that Hamilton agreed with George Driggs, that he might go a journey to the westward, and that the defendant became his surety that he should return in ten or twelve days; 'that he did, return within that time, and was delivered up by the defendant to Hamilton ; that the attorney in the causes against Driggs said the sheriff would be safe in letting him go, if the defendant was surety for his return ; that from Hamilton, it was understood, that Driggs was not his prisoner at the time the bond was given, Frazer’s assent to Drigg’s being set at large was denied by Hamilton, who said, he himself permitted Drigg’s to go the journey to the westward, on condition of the defendant’s undertaking for the return of Driggs, the prisoner; that he did come back, as was promised ; but that Hamilton recollected no surrender of him into custody; that the defendaut said he was willing to give a bond to indemnify the sheriff,-and, on, Hopkins’ consenting to the bond in question, it was executed; but that, the time of its execution, Driggs was absolutely at large, and had been so ever since his return; nor had the sheriff exercised any authority over him, as the deputy did not consider him in custody, in consequence of Hopkins’ consent to the bond; that of such consent, the plaintiff, shortly after the suits against him were commenced, was informed, and that lie had satisfied the judgments obtained therein against him, within about five pounds. On this testimony the jury found a verdict for the defendant.
    The present application was for a new trial.
    
      *Metcalf and Emott, for the plaintiff:
    The mo tian now made is for a new trial, the verdict being contrary to law and evidence; and, it may be added, though it does not appear in the case, contrary to the opinion of the court also. It is an action of debt on a bond of indemnity, to which the defendant has pleaded that the bond was given by him to the sheriff for ease and favor. The first question is, whether the bond was so given, and therefore, void? The second, whether the judgments obtained against the plaintiff were deceitfully or negligently suffered*/ The first point includes matter of law and matter of fact. Whether a bond to indemnify a sheriff from an escape given subsequent to an escape, and when not in custody, be a bond for ease and favor, and, therefore, void by the statute, is the question of law? Whether the party was then in custody or not, is that of fact. By recurring to the testimony in the case, it will appear that Driggs, for whose ease the bond is alleged to have been entered into, was out of custody long before it was executed, and the very right of taking him was questionable, as he had been discharged under the insolvent act. Against what is advanced, the agreement to let him go, on a promise to return, cannot be urged; for, though he did return, he never was in custody, and the liberation itself, under the agreement, was an escape, after which the bond was given. Is, then, this bond such a bond as is made void by the statute ? It expressly refers to bonds given for deliverance, and refers to one in *custody only. 3 Vin. Abr. 453, pl. 8, notis. [*455] Ibid. 454, pl. 13. 19 Vin. Abr. 445. A bond given to indemnify against past escapes, is good. Fox v. Tilly, 6 Mod. 225, which cites 2 Salk. 438, Ibid. 553. So 5 Com. Dig. tit. Pleader, (2 W. 25,) p. 648. Hacket v. Tilly, 11 Mod. 93. 5 Vin. Abr. 96, pl. 20. If, then, the law be so, the first defence is entirely false; for, it is not a bond under the statute, and therefore, is not void. Had any thing been said about its being given, at the time of liberating George Driggs, it might, perhaps, have been invalidated ; but it was not only not then in existence, but not even contemplated. As to any fraud in the plaintiff, from suffering the judgments to be had against him, ii surely will not be contended that is proved, because they went by default. There might have been no defence, and then a judgment by default was the only honest one that could be had; for any other would have been dishonest, as it could have no effect but to increase costs. There was a clear escape, and a recovery was inevitable; for, no consent to the discharge of George Driggs was either given by Hopkins or the attorney in the suit. None of the words made use of imply it; they only mean that as the plaintiff would be liable to Wendover and Hopkins, he might make himself secure by a bond; and to prove that this was the true idea the parties entertained, Hopkins, as survivor of Wendover, instantly commenced a suit against the plaintiff Had there been a wish to exonerate the sheriff, and permit the liberation of George Driggs, Hopkins would have taken the bond to himself, At all events, Dudley did not assent, and whatever may be urged respecting Hopkins’judgment . it cannot apply to that by Dudley; and to neither one nor the other of the suits, could the sheriff justify under the insolvency of George Driggs. In the case of Lansing v. Fleet, October, 1800, in this court, it was ruled, that a return into custody does not purge an escape; but, that the party may go at large again when he pleasés. They, therefore, relied on that authority, in addition to those cited, to show that the bond could not be for favor. Also 6 Mod. 127. 2 Leon. 89.(a) 1 Salk. 271. 10 Vin. Abr. 111, M. 1.
    
      Spencer contra.
    If it be made appear that the , [*456] plaintiff *cannot, under the present state of pleadings, recover, though a new trial should be granted the court will certainly let the verdict stand. Where a jury have found against law, if sending back the cause be for a trifling purpose, and the damages small, the court will not interfere; a fortiori they will not, if they see no possible use can. accrue. At the trial it was not made a point, whether, from the condition as set forth, the plaintiif could, under any circumstances, recover for an escape. The words are, that if the plaintiff should pay, &c. “by reason of the taking of the aforesaid George Driggs.” To the action on the penalty of the bond there are two pleas; one to the ease and favor ; the other, that the plaintiff had not been damnified. The replication means to raise this fact, whether the bond was given after Driggs had escaped, and to indemnify for that, or to obtain his deliverance at the moment when executed. The action is intended to recover what has been paid for an escape suffered, and not in consequence of having arrested. The defendant has engaged for nothing but for the taking; he does not say for the suffering to escape. This is a clear departure in pleading. The count, as appears by the condition, is for a taking, and the replication shows damage by an escape. The question, therefore, which now. arises is, whether it be competent for the plaintiif to aver a condition which does not appear on the bond. He cannot aver any thing which 'is not apparent. The bond is to indemnify only against taking on the writs. If Given cannot bring himself within the condition, he has no right to bring the action. Nothing can be averred which varies the condition. 19 Yin. 448, II. pi. 2: No averment against the condition of a bond. The contrary would overturn all legal principles of agreements, and on which the plaintiff resorts to recover damages If there be a recovery, it must be by paroi testimony directly opposite to the condition of the bond. With respects to the validity of the instrument, it is to be observed, that it is to indemnify for taking Driggs. When the wriis were put into the sheriff’s hands, he was to execute them: no security from a third person, to protect him from the consequences of doing his duty, can be good. But, admitting that it is valid, if the plaintiff cannot depart from [*457] *the condition, and in order to maintain his action he must do so, let the verdict be as it will, the court will not grant a new trial. For, suppose it was done, and a verdict for the plaintiff, a motion would be made in arrest of judgment for the variance; and as it appears on the face of the record that the condition is for the sheriff’s not doing his duty, it is illegal, and the suit not to be maintained. Either of these reasons would be fatal, and both are certainly enough to warrant the refusal of a new trial. The second objection, stated in the rejoinder, still remains unanswered. The defendant was to be answerable only after due proceedings had against the plaintiff ly reason of tin, aforesaid talcing. These words preclude every idea of a default. The condition contemplates a payment after a trial had between the parties. Against all that is advanced on behalf of the defendant, it is urged, that if a party taken on execution escape, and afterwards a voluntary bond be given to indemnify, it would not be within the purview of the act. But this is not such a case. There were conversations at the time of taking, respecting an indemnification, and an agreement that George Driggs should be forthcoming. The whole testimony evinces this. Yet, were it otherwise, the law will not bear out the position of the other side. 4 BaC. Abr. 464,  is express, that if a party be taken, escape, return, and give bond to indemnify, it is void by the statute and common law. On the point of fraud, the jury were the proper judges; it was submitted to them by the judge who tried the cause, and they have determined. The cases cited apply to transactions between the parties, and not to those between the sheriff and a stranger. It is relied on, that under no circumstances does this bond afford a ground for action, being void and nullity in itself; that the condition is to indemnity against the talcing, and that evidence of damage from an escape cannot, therefore be adduced.
    
      Emott, in reply.
    We are here to argue on a question for a new trial. It is somewhat of a novelty, that we should be called on to speak against an arrest of judgment; all we have to show is, that on the pleadings the verdict is against evidence, and that we were entitled to recover. If the court will *look at the bond and testimony, [*458] they will see it was a bond to indemnify against an escape, and not against a mere taking. The intent of parties is always to regulate in matters of contract. The intent appears from the plea; for the defence is, that the bond was for ease and favor, which it could not be, if it was to keep harmless for taking alone. The testimony on both sides went to the point of ease and favor, and tended to show it was to indemnify, after a going at large, from actions of escape, which might be brought for that which had taken place. If there had been no taking, there could have been no escape ; and, therefore, the bond, transactions, pleadings and testimony, all show that it was to indemnify for an escape which had long before been permitted. This objection, on the word taking, was overruled at the trial, as the judge must recollect, though it does not now appear.
    
      Emott.
    
    The dates stated, and before the court, will show that the bond coiild not be for ease and favor. The arrest was on the 10th or 12th of March. George Driggs was then liberated by the sheriff, and the bond not dated till the 22d of April following. Lansing v. Fleet,
      
       is in point to show that had George Driggs returned to the sheriff himself, he could not have been held, or considered as a prisoner. Where, then, could be the ease and favor in discharging a man that was actually at liberty? For the reason already given, a defence by the plaintiff to the actions against him, might have been highly improper; to show-the judgments, therefore, fraudulent, it ought to be made appear that there was a good and legal defence, which tho plaintiff neglected to make. This was afforded neither by the discharge under the insolvent act, nor by the words of Hopkins. It is worthy of observation, that it does not appear George Driggs ever was discharged under the insolvent law, as has been asserted. Nothing of the kind was proved at the trial, and nothing appears in the' case: but had it been otherwise, the plaintiff could not have justified under it, for he could not take upon himself to determine on its legality, as it might possibly have been invalid from fraud. The only sections in the act [*459] for the relief of insolvent debtors, applicable to the present discussion, are the 7.tb, 11th, and 12th ; the first, after authorizing a discharge from debts and imprisonment, goes on thus: “Which discharge, or the record thereof, shall be sufficient authority to the sheriff for setting such prisoner at large, and the discharge shall 'also be conclusive evidence in all courts, of the facts therein contained.” The second authorizes the pleading of the general issue. The third declares, that if the insolvent be guilty of perjury, or fraud, the discharge shall be void. Two cases, therefore, and only two, are specifically provided for; that of an insolvent’s being imprisoned at the time when the discharge is obtained, and that of his being subsequently arrested. In the first, he will be liberated on producing the discharge; in the second, he may plead the general issue, and give the discharge in evidence. It is a mere statutory release, to be taken advantage of like any other, and avoidable by proof of fraud. If therefore, the defendant meant to insist that it ought to have been used by the plaintiff, he should have shown it below, that the plaintiff might have rebutted it by proving fraud. But it never could have been availed of by the plaintiff, as the judgments on which the suits against him were founded are in existence. When the writs of execution against George Driggs came into the plaintiff’s hands, it was his duty to execute them : to obey their precepts, not to judge of their effect; his duty being purely ministerial. On this head the law is so strict, that it will not permit a sheriff to set up a payment, without satisfaction is entered of a record. 6 Mod. 27. Mor a release. 2 Leon. 89. It is submitted, therefore, that as the defence would have been useless, it could not have been intended; that the bond being given when George Driggs could not be eased nor favored, could not be for ease and favor, and that, as no kind of fraud is imputable in the recovery on the judgments, the "verdict is against law and evidence, and must, therefore, be set aside.
    
      
      а) Stepney v. Loyd, Oro. Eliz. 647. The defendant was illegally arrested, end the bond held void as obtained by duress.
    
    
      
       On a fi. fa. the sheriff took a bond to pay the money into court at the return of the writ, and held good. 10 Rep. 99, b., Bewfage's Case.
      
    
    
      
      
        A bond to be a true prisoner, good.
    
    
      
       That was a bond from an officer to the sheriff, to indemnify against escapes. See Holt 201.
    
    
      
       It is a citation from the year books, but, in my Leonard, from that of Henry the ninth. I have searched in Henry VI. and in Brooke, but do not find the case, which is, that a release by the plaintiff to his debtor who waa in execution, is no plea in an action for an escape before the release.
    
    
      
      а) The case alluded to is Philips & Stone's Case, 2 Leon. 118, but the debtor there was taken on a ca. sa.
      
    
    
      
       The authority does not go quite so far.
    
    
      
       Since reported, 2 Johns. Cas. 3
    
    
      
       The reason why a bond to permit an escape is void is, because it is tl do an unlawful act. When that act is already dono, the reason fails.
    
   Thompson, J.

My recollection is confined to the case.

Kent, J.

delivered the opinion of the court. There can be no doubt that the verdict is against evidence. The one issue is upon the allegation that no bond was given, and that it was for his deliverance from such custody. But the evidence on *both sides concurs, that when [*460] the bond was given, George Driggs was not a prisoner, but at large, and had been so for some days, by the permission of the sheriff. The other issue is upon the allegation, that the judgments were suffered by the plaintiff to be entered by default fraudulently. But there is no svidence of such fraud, and no ground from which to infer my. A judgment by default is no presumption of collusion, if no real defence appear, or could have been made. The verdict must, therefore, be set aside, unless we perceive clearly from the case, that the plaintiff can never sustain a suit upon the bond, and then a new trial would be useless. A bond given to indemnify against an escape already happened., is good.(a) The bonds, which are void under the act, as being given for ease and favor, are those given by a person in custody. Dawson v. Bruner, cited in 10 Co. 100, a. Moore, 542, case 717; 11 Mod. 93, and 2 Ld. Raym. 1207. S. C. 6 Mod. 225. There is, therefore, no reason to conclude, from the testimony, as it appears in the case, that the bond is void; and it ought at least to appear manifestly, before the court could notice it under the present motion.

The verdict must, therefore, be set aside on payment of costs.

Lewis, Ch. J. and Livingston, J. absent.

New trial granted. 
      
       See Acker v. Burrall, 21 Wend. 605; Trustees of Newburgh v. Galation, 4 Cow. 340; The Steuben Co. Bank v. Matthewson, 5 Hill, 49; Webber’s Exrs. v. Blunt, 19 Wend. 188, (note); Stone v. Hooker, 9 Cow. 154; Kneeland v. Rogers, 2 Hall, 579; Strong v. Tompkins, 8 J. R. 98; Love v. Palmer, 7 J R. 159 • Harp v. Osgood, 2 Hill, 216.
     