
    Syme v. Griffin.
    Wednesday, November 8, 1809.
    
    
      1. Pleading and Practice-Demurrer and Plea, — It is settled under our act oi Assembly, (1 Rev. Code, p. 80, ch. 66, sect. 40.) that a plea and demurrer, at the same time, to the whole declaration, are admissible.
    2. Same — General Demurrer — Office Judgment. — A general demurrer is an issuable plea, which ought to be received for the purpose of setting aside an office j udgment.
    3. Assignment of Breach by Way of Recital. — In debt on bond with collateral condition, an assignment of a breach commencing “and whereas," &c. and continuing by way of recital, to the end, without any direct averment, is insufficient; and such error is fatal on general demurrer.
    4. Prison Bounds Bond — Validity.—A bond taken by the Sheriff of a debtor in custody, conditioned that such debtor shall keep within certain prison-bounds, “until he shall have discharged the debt and costs, and save harmless the said Sheriff,” is illegal and void. It should be, simply, “that he shall not depart or go out of the rules or bounds of the prison to which he was committed.”
    Nicholas Syme assignee of John Gacy, Sheriff of New Kent County, brought in the County Court of York an action of debt against Corbin Griffin, surety for a certain John Webb in a prison bounds bond, dated the 12th of December 1786.
    The declaration set forth the bond with the condition thereof at large ; and then proceeded thus; “And whereas the said John did depart and go out of the bounds assigned by the said Justices of New Kent, in the county of New Kent, contrary to the form and effect to the condition aforesaid, whereby the said writing obligatory became forfeited and “whereas afterwards the said John Gacy, as Sheriff of said County of New Kent, by his deputy Benedict Crump, did assign over and deliver to the plaintiff the said writing obligatory by endorsing an assignment on the same, by reason of which assignment, and by force of an act of Assembly in that case made and provided, an action hath accrued to the plaintiff to have and demand from the *said defendant the said sum of 2511.12s. 6d. ; nevertheless the said defendant, although often requested, hath not paid the same,” &c.
    The condition of the bond as set forth was “that if the above bound John Webb shall keep within the' prison bounds laid off by the Justices of the Court of New Kent, until he shall have discharged the debt and costs, and save harmless the said John Gacy, then the above obligation to be void, otherwise to remain in full force and virtue.”
    The defendant not appearing, a conditional order was confirmed against him in the Clerk’s office; which at the ensuing Quarterly Court was set aside, on his appearance and filing a general demurrer to the declaration, together with the plea of conditions performed. The plaintiff joined in demurrer, and replied generally to the plea. On argument, the demurrer was sustained, and judgment for the defendant; and that judgment was affirmed by the District Court, from which the plaintiff appealed to this Court.
    Randolph, for the appellant.
    Wirt, for the appellee.
    On the part of the appellant an objection was made to a demurrer to the whole declaration and a plea to the whole : but the Court said it was settled, under our act of Assembly,  that a plea and demurrer at the same time to the whole declaration are admissible. Randolph also observed the demurrer was offered too late, for an office judgment could be set aside by an issuable plea only, and a demurrer which does not go to the merits  of the case is not an issuable plea. He then admitted the decisions of this Court as to the quod cum, and the want of a direct averment in the declaration, but contended that those decisions applied only to actions of trespass. In the Court of Common Pleas the *quod cum has long been disregarded ; and in K. B. resort is had to a fiction to get over it. When, therefore. this Court adopted the evil of the quod cum, it would have been well to have adopted the antidote with it: but, since that fiction cannot be resorted to here, they should, for that reason, have emancipated themselves from the rule. He hoped, however, they would not, by analogy, extend it to other cases. In an action on a bond the “whereas” is mere inducement, and ought not to be regarded : and here the words “whereby the said writing obligatory became forfeited” amounted to a positive averment.
    On the other side, it was urged, that the reason was the same, in every case, that a positive averment of the gist of the action should be made. The breach was therefore defectively assigned, being merely by way of recital throughout. Besides, there was no time laid when the breach was alleged to have been committed; neither was it so set out as to be clearly within the terms of the condition ; for, notwithstanding John Webb did depart and go out of the prison bounds, he might have previously “discharged the debt and costs and saved harmless the said John Gacy.”
    But the grand objection is, that the bond itself is void in law ; the condition being different from that prescribed in the act of Assembly . According to that act it should have been “that he -the said John Webb should not depart or go out of the rules or bounds or the prison to which he was committed:” the words “until he should have discharged the debt and costs and saved harmless the said John Lacy,” should not have been added. The variance is fatal, under the general provision in the act of 1748, c. 6, sect. 7.
    
    To shew the jealous rigour of Courts in relation to these bonds taken by Sheriffs, see Dalton’s Sheriff, 518 — £22.
    ^Saturday, November 18. The Judges pronounced their opinions.
    
      
      Pleading and Practice — Demurrer and Plea. — Under tbe act of 1111:1 (1 Rev. Code, ch. 66, § 40), tbe plain till in replevin and tbe defendant in all other actions, might plead as many several matters whether of 1 aw or fact, as he thought necessary for his defence; notwithstanding such several matters he inconsistent with each other. Waller v. Rills, 2 Munf. 88.102, citing the principal case. See the principal case cited in Farmers’ Bank v. Clarke, 4 Leigh 609.
    
    
      
      Same — General Demurrer. — A general demurreris a plea and may he filed within the same time that any other plea may he received, where no other plea has been entered. Coyle v. Baltimore, etc., R. R. Co., 11 W. Va. 94. See monographic note on “Demurrers” appended to Commonwealth v. Jackson, 2 Va. Cas. 501.
    
    
      
      Prison Bounds Bond — Validity.—A prison hounds bond, conditioned to save the sheriff harmless in case the prisoner escapes, encourages the officer in the neglect of a duty Imposed on him to take the proper steps to re-arrest the prisoner, and is therefore contrary to public policy and void. See the principal case cited with approval in Morgan v. Hale, 12 W. Va. 726; Porter v. Daniels, 11 W. Va. 254. The principal case is distinguished in Hooe v. Tebbs, 1 Munf. 508, 509.
    
    
      
       Rev. Code, vol. 1, c. 66, sect. 40, p. 80.
    
    
      
       The case in Term Rep. was one of special, and not of general, demurrer, which was the present case. — Note in Original Edition.
    
    
      
      b) 7 Term Rep. 530, Berryn v. Anderson.
    
    
      
      c) 3 Hen. & Munf. 280, in note.
    
    
      
       1 Esp. N. P. 298, 1 Str. 227.
    
    
      
       1748, ch. 8, sect, SI, 24, Ed. of 1769, p. 196, re-enacted Rev. Code, vol. 1, p. 303, c. 151, sect. 37.
    
    
      
       Ed. of 1769, p. 184.
    
   JUDGE TUCKER.

The turn which was given to the argument of this cause, on the ground of the want of a sufficient averment of the cause of action in the declaration, would almost induce a suspicion that' the gentleman from whom it proceeded held the decisions of this Court in less respect than they are certainly entitled to ; or that he had forgotten his own argument in a very late case on the same point; or was unacquainted with the principles upon which the decisions in Winston v. Erancisco. Chichester v. Vass, and Cooke v. Simms, (all of which were actions on the case, and after general verdict), were founded. Lomax v. Hord, was also an action on the case; and though inclined to think the second count might be supported after a verdict, I yielded my opinion, without reluctance, to the majority of the Court who thought otherwise, although that case, also, was not upon a demurrer. That a sentence introduced by the word whereas has been always regarded as mere recital, unless in a subsequent part of it there is some positive allegation, has been too long settled both by pedagogues and rhetoricians, as well as by Courts, to be doubted at this day. That part of the declaration in which the escape (the very gist of this action) is mentioned, is prefaced in that manner; nor does it appear to me to be helped by the words “whereby the said writing obligatory became forfeited ;” that being only a legal conclusion, and not as was contended a substantive averment of a matter of fact. Still I should have struggled hard to support this declaration, if in the subsequent part a proper expression, such as might refer to the whole subject matter before recited had been used, instead of the word assignment, as the inducement to the action. For the assignment of the bond alone could not give a right of action unless a precedent escape had given a cause of action : neither is this mistake (probably made cúrrente calamo) aided upon a demurrer, by the subsequent words “and by force of an act of * Assembly in that case made and provided,” because the act of Assembly does not give an action unless there has been an escape, which in this case is not properly averred. In an action founded upon a statute, the plaintiff ought to aver every fact necessary to inform the Court that his case is within the statute. Whether a verdict might have supplied the want of this averment, I shall not pretend at present to say ; the question before us being, whether it is good upon a general demurrer. I think it is not.

But an objection was taken to the bond itself, which, if sound, is fatal not only to the present action, but to any other that may be brought upon this bond. By the act of 1748, c. 6, incorporated in the late revisal, it is declared that it shall not be lawful for any sheriff or his officer or deputy, to take any obligation of or from any person or persons in his custody, for or concerning any matter relating to his office, otherwise payable, than to himself, as sheriff, and discharge-able upon the prisoner’s appearance, áte. And every obligation by any sheriff taken, in other manner or form by colour of his office, shall be null and void; except, in any special case, any other obligation is, or shall be by law, particularly and expressly directed. This clause was framed on the purview of stat. 23 Hen. VI. c. 10, concerning which great doubts were formerly entertained, whether the Judges must take notice of it, ex officio, or whether it must be pleaded, but that doubt has been lately overruled in England ; and there is the same or greater reason for overruling it in this country, where special pleading is so seldom practised, and where the law permits private acts to be given in evidence without pleading. The bond authorized to be taken from persons in execution by the act of 1748, is to be taken to the sheriff with good and sufficient securities under a reasonable penalty, upon condition that he shall not depart or go out of the rules, or bounds of the prison to which he was committed. Any further substantive condition under the first recited act is therefore void, The sole question then is, whether those words *of the condition,' “if the above bound John Webb shall keep within the prison bounds laid off by the Justices of the Court of New Kent, until he shall have discharged the debt and costs, and save harmless the said John Lacy, then the above obligation to be void, otherwise to remain in full force and virtue,” do import a substantive condition beyond that which the law authorizes. Suppose Webb should have taken the oath of insolvency, and had been discharged by virtue thereof. Would he not have broken the condition not to depart the bounds until he should have discharged the debt and costs ? Certainly, I conceive : the bond is therefore void for that part of the condition which should have only required that he should not depart the bounds, until thence discharged by due course of law. Again ; suppose him to have left the bounds, and that the sheriff had neglected to pursue the proper steps pointed out by the law to take him ; and for that neglect the plaintiff had brought suit against the sheriff and recovered. Still might not the sheriff, according to the latter part of this condition, have brought suit against Webb and his securities, to indemnify him for his departure from the bounds, though he might have retaken him if he would, the next day, or perhaps the next hour? Certainly he might, unless the bond itself be void. Now every bond taken in such manner as to induce or encourage neglect of duty in a public officer is void, I conceive, by the common law.

The statute has, for the sake of the prisoner, superadded a further security against the abuses of office, by declaring all bonds taken in any other manner or form, than such as is by law particularly and expressly •directed, void. I am therefore of opinion both judgments were correct, and ought to be affirmed.

JUDGE FEEMING.

After a deliberate and mature consideration of this case, I perfectly concur in the opinion just

^delivered, on every point; and more especially, that the bond on which the action was founded is illegal and void, not being authorized either by the common law, or by statute; the condition being that “John Webb” the' debtor, should keep within the prison bounds laid off by the Justices of the Court of New Kent, until he should have discharged “the debt” and costs, and save harmless the said John Eacy. The effects that such a bond might have had on the prisoner, have been too clearly pointed out to need a repetition ; and, had the declaration been ever so formal and correct, an action on this bond never could have been sustained, it being void in itself, as having been taken, expressly, contrary to law.

Judgment affirmed. 
      
       3 Wash. 18.
     
      
       1 Call, 83.
     
      
       2 Call, 39.
     
      
       Rev. Code, vol. 1, c. 80, s. 17, p. 122.
     
      
       See Plowd. 64. 65.
     
      
       2 Term Rep. 574, 575, Samuel v. Evans.
     
      
       Plowd. 64, 68.
     
      
       See Dives v. Manningham, Plowd. CO-69. See also Rogers v. Reeves, 1 Term Rep. 418.
     
      
       Jcdge Roane did not sit in this cause. — Note in Original Edition.
     