
    Alfred F. Cumpston v. William Lambert.
    Where a justice of the peace called upon a person to assist a constable in making an arrest upon a capias ad satisfaciendum, stating that such arrest was lawful, and promising to indemnify such person, for assisting to make the arrest and prevent a rescue, and it turned out that the arrest was illegal, and a judgment had been recovered against the person assisting, for the trespass; Held, that the justice was not liable on his promise of indemnity — the contract being for the performance of an illegal act.
    This is a writ of error to the Supreme Court for Lawrence county.
    The original action, which was commenced in the court of common pleas of that county, was in assumpsit. The action was brought by Cumpston' against Lambert. The declaration contained nine counts. The defendant demurred to all the counts, and the court of common pleas sustained the demurrer. The case was taken to the supreme court on and' the judgment of the court of common pleas affirmed. This writ is prosecuted to reverse the judgment of the supreme court, the error complained of being that this court affirmed the judgment of the common pleas.
    The first count of the declaration charges, in substance, that the defendant was a justice of the peace ; that, as such justice, he assumed and pretended to have lawful authority to command and direct the arrest of one William Razor, then present before him; that he did command the plaintiff and other persons to arrest said William Razor ; that in pursuance of said command, said plaintiff and said other persons had arrested said Wm. Ra zor, and was detaining him in custody, when one John Razor in terfered, and attempted forcibly to rescue said Wm. Razor; that thereupon, the defendant, as justice of the peace, directed the plaintiff to lay hold of John Razor to prevent the rescue, and promised to indemnify him for so doing; that the plaintiff, believing, as he reasonably might, the arrest to be lawful, and relying on the promise of indemnity, obeyed the command; that the arrest was in fact unlawful for want of authority in the defendant to make it; that afterwards said John Razor brought suit against both plaintiff and defendant, and the other persons who assisted in making the arrest, and recovered damages against them; all of which damages plaintiff has been compelled to pay; and that the defendant refused to indemnify him.
    The second count charges, that the defendant, being an act ing justice of the peace, assumed to have authority to command the arrest of Wm. and John Razor, then present before him ; •that said defendant commanded the plaintiff and others to arrest said Wm. and John Razor, and promised to indemnify him; that the plaintiff, believing the command to be lawful, and relying on .the promise of defendant, did assist in arresting said Wm. and John Razor. The averment of the unlawfulness of the arrest, the damage, and breach, is the same as in the first count.
    The .third count is substantially like the second, the command being to arrest John Razor only.
    
      The fourth count charges, that one James A. Sherman, being a constable, assumed to have authority, by virtue of a writ of ca. sa. which he pretended to have from under the hand and seal of the defendant, a justice of the peace for said county, to direct the arrest of .Wm. Razor; and said Sherman, as such constable, had arrested and was detaining in custody said Wm. Razor, when one John Razor was endeavoring forcibly to rescue said Wm. Razor from the custody of said constable; that the constable commanded plaintiff, with others, to lay hold of and arrest said John Razor to prevent the rescue, and the defendant promised to indemnify plaintiff, for so doing; that plaintiff believing the command to be lawful, and relying on the promise of defendant, assisted in arresting John Razor, to prevent him from rescuing Wm. Razor. The averment of the unlawfulness of the arrest, and the damage and breach, are the same as in the first count.
    The fifth count charges, that one James A. Sherman was an acting constable, and the defendant was an acting justice of the peace in Upper Township in said county. That said constable pretended to have authority, by virtue of the command of said defendant as justice, to direct the arrest of Wm. and John Razor; that he commanded plaintiff to assist him in making the arrest; that the defendant promised to indemnify him for so doing; that the plaintiff believing the arrest to be lawful, as he reasonably might, and relying on the promise of defendant, did assist the constable. The averment of the unlawfulness ot the arrest, and the damage and breach, are the same as in the first count.
    The sixth count is the same as the fifth, only the command •was to arrest John Razor alone.
    The seventh count charges, that in consideration that the plaintiff would, at the special instance and request of the defendant, assist one James A. .Sherman to arrest one John Razor, then present before said James- A. Sherman, being then and there an acting constable, and having then and there commanded the plaintiff to assist him in making said arrest, the said defendant promised to indemnify the plaintiff from all loss or damage by reason thereof; that the plaintiff, believing the arrest to be lawful, and relying on defendant’s promise, did assist said constable in making the arrest. The damages and breach are the same as in the first count.
    The eighth count charges, that in consideration that the plaintiff had, before that time, at the special instance and re quest of defendant, assisted one James A. Sherman, then ane there an acting constable, to arrest one Wm. and John Razor the defendant promised to indemnify the plaintiff from all loss by reason thereof. Damage and breach as in first count.
    The ninth count charges, that in consideration that the plaintiff had before that time, at the special instance and request of defendant, assisted one J. A. Sherman to arrest and detain as a prisoner one John Razor, the defendant promised to indemnify the plaintiff from all loss by reason thereof. Damage and breach the same as in first count.
    
      J. F. Wheeler, for plaintiff in error,
    Contended that, though there was no contribution between joint trespassers as a general rule, yet it was a rule that admitted of exceptions. That where the act to be performed might have been lawful, and the illegality thereof was unknown to the promisee at the time of performing the act, the promise of indemnity is valid. And that this is particularly and,necessarily so, when the command to do the act was given and the promise of indemnity was made by an officer who has a right to call in assistance in the discharge of his duties, he cited Adamson v. Jarvis, 4 Bing. Rep. 72; 1 Esp. N. P. (1 Am. Ed.) 91; Betts v. Gibbons, 2 Adol. & Ed. Rep. 57; Coventry v. Barton, 17 Johns. Rep. 144; Stone v. Hooker, 9 Cowen’s Rep. 154; Avery v. Halsey, 14 Pick. Rep. 174; Allaire v. Ouland, 2 Johns. Cases 54; Musson v. Fales, 16 Mass. Rep. 331; Fletcher v. Harcourt, Winch. 48; Doty v. Wilson, 14 Johns. Rep. 881; Pow. on Con. 177; 1 Com. on Con. 31; Stephens N. P. 322; Chit, on Con. 503; Cowp. 343; 1 Vin. Ab. 229, Pl. 27; Buller’s N. P. 146; Bathurst’s N. P. 136; 1 Ch. Pl. 84; 2 Greenl. Ev. sec. 115; 1 Bac. Ab. tit. assumpsit, E.
    
      Simeon Nash, for defendant,
    Insisted that all the cases cited in which a promise of indemni ty had been enforced, were cases involving the assertion of a right to real or personal property; that the distinction was founded in reason and was recognized by the authorities.
    It was further insisted, that the promise was void for want of consideration in this: that inasmuch as peace officers have authority to call for aid in the discharge of their duties, persons are bound to obey. If the aid demanded was in the discharge of a legal duty, it was a contract to pay one for doing his duty, and therefore void. If it was to aid in an illegal act, then the contract was void, as against public policy. He cited 7 Com. Dig. 543; 5 Wharton’s Rep. 437; 1 Leigh’s N. P. 39; 2 Burr. Rep. 924; 2 Camp. Rep. 317; 1 B. & A. Rep. 950; Addison on Con. 22; 1 Caine’s Rep. 104; 12 Ohio Rep. 281.
   Caldwell, J.

The simple question, arising on this record, is whether a promise of indemnity of this kind is valid ?

The general rule on the subject is, that agreements to perform, or indemnify for the performance of, unlawful acts, are void. Another rule,' of a kindred character, is, that there can be no contribution between wrong-doers.

There are, however, exceptions to these rules, where a contract of indemnity has been held good, notwithstanding the act done, which formed the consideration, was illegal, and the person doing it liable to the party injured, on the ground that the party doing the act did not know of its illegality, and might reasonably have believed it to be legal.

It is contended by the plaintiff’s counsel that this case comes within the exception, and we have been referred to a number of cases which are said to be analogous to the present; where the contract for indemnity was held to be valid. We think, how ever, that none of the cases referred to are similar to the present one.

The case of Coventry v. Barton, 17 Johns. Rep. 144, is relied on. That was a case where the person indemnified was called on by the overseer to work on the highway, and ordered to remove a gate that stood across the road, and a promise of indemnity was given him by the overseer. On a recovery against him in trespass, he was permitted to recover on his contract of indemnity against the overseer. That case differs from the present one in this, that it was a trespass to property, whereas this was a direct assault on the person; that was a case where the person committing it, at the time was engaged in doing (what he was told to do, to wit,) work on the roads, under the direction of the overseer, who was supposed to know what was to be done, and who, for the time being, had the right to control his labor. The same may be said of the most of the cases cited. They are cases of trespass to real property, where the person committing the trespass, and receiving the indemni ty, was engaged in his usual occupation under the direction of the person who indemnified him.

The case of Fletcher v. Harcourt, however, is said by counsel to be strictly analogous to the present. That was the case of an innkeeper who kept in his inn during the night, a prisoner who was brought to his house by the sheriff, who had arrested him on a commission of rebellion, the sheriff promising to indemnify him. On a recovery had by the prisoner against the innkeeper for false imprisonment, it was held that he could recover against the sheriff on his promise.of indemnity. Although a false imprisonment may be supposed to contain an assault on the person, it does not necessarily imply the use of actual force. In this case the innkeeper did not assist in the first instance in depriving the prisoner of his liberty — he had nothing to do with the arrest, but in the course of his business a prisoner is brought to his house. His business compels him to keep such persons as stop at his house; it is his duty to keep prisoners as well as others, who must have some place to lodge, and who have to receive the necessaries of life in their transit from one point to another. Humanity, if nothing else, would require the innkeeper to receive him.

We have seen no case where it has been held that a contract to deprive a person of his liberty, in the first instance, or to commit an actual assault on the person, where such arrest or assault was illegal, has been held to be binding. We do not suppose that such case comes within the rule, except in cases where the person committing the arrest is an officer whose duty it is, in a proper case, to arrest persons, and who acts by some supposed legal authority.

We do not think that the fact that the plaintiff in this case acted under the direction of a justice will at all avail him for doing an illegal act. Most of the tyranny and cruelty that has been practiced in the world over the persons and property of men, has been done under some kind of official sanction. I could much sooner sympathize with a person that had committed an illegal act on his own responsibility, than with one who did it because he had the backing or countenance of official power. If a person (as the plaintiff in this case did) commits an assault on another, either for the purpose of depriving him of his liberty, or to hold him in custody after he has been taken prisoner, he should be satisfied that such interference is legal, otherwise he should heed the consequences.

We think that this contract of indemnity comes under the general rule that a contract to do an illegal act is void; and therefore affirm the judgment of the supreme court.

Spalding, J.,

dissenting. I dissent from the opinion expressed in this case by a majority of the court.

The fourth count, in my judgment, makes a case which, if supported by proof, will entitle the plaintiff to a recovery.

It is admitted that an agreement to indemnify for the performance of an unlawful act cannot, in general be enforced:' “ As where the defendant in consideration of 20s. assumed to pay 40s. if he did not heat J. S. out of such a close.” 2 Leo 174.

“ But the act to be done must appear unlawful at the time, otherwise the promise will not be void.” Buller’s Nisi Prius 146.

Thus, where Harcourt brought one Battersey to an inn, and affirmed to the host that he arrested Battersey by virtue of a commission of rebellion, and requested the host to keep him safely over night, and promised to save him harmless, the promise was held to be binding, though the arrest and imprisonment were illegal. Story on Contracts, sec. 206.

It is said in 1 Viner’s Abridg. 299, that in commenting upon this case Hobart, C. J., said, “ it may be there is a difference between a public officer and a private man; for if the sheriff arrest a man unlawfully, and promises as before, this is a good assumpsit.”

In the case of Avery v. Salsey, 14 Pickering 374, it was held that a promise of indemnity made to the plaintiff by a person in no wise interested in the property upon which the trespass was committed, was binding; as the danger incurred hy the promisee was a valid consideration for the promise.

•In Coventry v. Barton, 17 Johnson 142, Judge Spencer after an examination of the authorities, lays down the rule “ that if the act directed or agreed to be done is known at the time to be a trespass, an express promise to indemnify would be illegal and void; but if it was not known at the time to be a trespass, the promise of indemnity is a good and valid promise.”

It is said, however, by my learned brethren that this rule must be confined to cases of indemnity for trespasses upoD property.

I can find no adjudged case that sanctions any such distinction, and I can see no propriety in adopting it in the present case.

The act which the plaintiff was called on to perform was to all appearance lawful. He was requested to lend his aid in preventing a forcible rescue from what was claimed to be a legal arn:st; he hesitated to do so, and was told by the magistrate who Issued the execution that he should be indemnified against harm, I yield my assent to the doctrine laid down in the American Jurist, vol. 4, page 276, that “ignorance of the moral quality of actions, or of the law relating to offenses, will not excuse a breach of law, nor render legal an engagement to save an offender harmless in consideration of his committing a punishable offense

But in the case under consideration, the plaintiff did not commit a punishable offense. However much he may have subjected himself to damages for false imprisonment, he could not have been found guilty on an indictment for an assault and battery. The criminal intent is wanting.

If the writ in the hands of the constable had been legally issued, as it was claimed to have been, then the plaintiff would not have committed an unlawful act by interfering to prevent the rescue. The defendant undertook to be answerable for its legality, and promised to indemnify the plaintiff. I am at a loss to see how we are to prevent usurpation, or oppression in office, on the part of magistrates, by holding the promise of indemnity made by such a magistrate to be void, and by ruling that his innocent dupe shall suffer the whole penalty of the law.

I am of opinion that the demurrer to the fourth count should have been overruled, and consequently that the judgment of the common pleas was erroneous.  