#### Webbers’ Executors *vs.*Blunt.

ALBANY,

January, 1838

A promise to a sheriff to indemnify him against all damages to which be may be subjected in consequence of discharging from custody a third person, whom he has arrested on legal process is void, as taken colore officii, although the sheriff was induced to grant the discharge upon a false representation of the promissor that the debt, to enforce the payment of which the process had issued, had been satisfied.*

Demurrer to declaration. In the first count it was stated that Webbers, in his life time, being sheriff of. the county of Westchester, having arrested one Edmund M. Blunt, by virtue of an attachment out of chancery for costs, the defendant, Joseph Blunt, represented to Webbers that the attachment had improperly issued, that the costs had been paid, and that Webbers ought not to hold E. M. Blunt in custody; and in consideration that Webbers would discharge him,, the defendant promised to indemnify Webbers ; that Webbers, confiding in the truth of ¡‘such representation, and in consideration of the defendant’s promise, did dis*189charge E. M. Blunt; yet the defendant refused to indemnify, &c. whereby Webbers was sued and was obliged to pay $400, &c. The *second count*was substantially the same, except as to the defendant’s representation, which was stated to be simply that the attachment had wrongfully and improperly issued, and that E. M. Blunt ought to be discharged, &c. with more full details as to the suit and proceedings for the escape. The *third count*stated that on the arrest, being made, E. M. Blunt himself represented that the costs had been satisfied, and that the attachment was improperly issued, and promised that if Webbers would discharge him, he would obtain from his son the defendant a promise to indemnify Webbers. Whereupon Webbers discharged him ; and the defendant, at the request of E. M. Blunt, and in consideration of such discharge, promised, &c., as before, with damages as before, and refusal to indemnify, &c. Demurrer and rejoinder.

*S. Stevens,*for defendant.

*J.*A. *Spencer,*for plaintiffs.

*

 The reporter has been furnished by the defendant in this cause with a certificate of Minott Mitchell, Esq,, the attorney for the plaintiff, stating: that in April, 1838, this cause was amicably adjusted by the parties ; that the defendant paid the original judgment against the sheriff with interest; and that each of the parties paid their own costs, At the request of the defendant this note is published.

*By the Court,*

Cowen, J.

Admitting the discharge to have been lawful, the third count is clearly bad. It represents the defendant a mere volunteer on a past consideration, a discharge from the attachment without his request, 1 Chitty’s PI. 263, ed. of 1823; and the cases there cited, and for the exclusive benefit of a third person, promising to indemnify the sheriff. It is true we must intend that this promise was in writing; but written or unwritten, being a mere *nudum pactum,*there is neither principle nor authority in the law which goes in the least to sustain it.

The first and second counts are good, provided the sheriff acted lawfully in discharging the defendant’s father, on the representation that the attachment had wrongfully issued. Neither count alleges any thing more in substance, though according to the allegation in the first, the defendant added that the costs had been paid. In either case, the question is, *190whether the sheriff was authorized on any mere representati°n of the defendant to disobey the process of the law ?

Were the question one of mere civil right respecting a matter collateral to the writ, like the taking of property under a *fieri facias*supposed to be sold by the execution debtor in order to defraud his creditors, I should not be disposed to deny that a promise of indemnity would be valid, where the sheriff, as he is alleged to have done in this instance, had acted in good faith. *Placket*v. *Gresham,*3 Salk. 75. Yet it requires no effort to see that such a case would be very different from his taking the word of the defendant’s son, or any other person, that there is error or irregularity in the process itself, and sitting in judgment upon the act of his superiors, and determining the question whether the ^command in the writ shall be obeyed or disobeyed. *Scott*v. *Shaw,*13 Johns. R. 378. *Hinman*v. *Brees,*id. 529. A wilful disobedience, even to the civil process of the court, is such an abuse as would not only subject the sheriff to punishment as for a contempt but to an indictment. It is a violation of his oath of office. The question is whether he could escape such a consequence, because some one tells him that there is some where a secret vice in the line of proceedings, by which the writ may be avoided. Would any court listen to such a defence for a moment *1*Even if the allegation were true, it could not be set up and inquired into collaterally. The writ would be holden valid until set aside by the authority from which it emanated. *Hinman*v. *Brees,*13 Johns. R. 529, 531. Per Van Ness, J. in *Cable*v. *Cooper,*15 id. 152 *Jones*v. *Cook,*1 Cowen, 309.

Indeed, it was held in this very matter on an action for the escape, that it was no defence for Webbers to say that the attachment was irregular, because the debt had been paid or discharged, and Mr. Justice Nelson cited several authorities to that point. *Ames*v. *Webbers,*8 Wendell, 545, 547.

It follows, then, that this promise is void, on the ground of public policy. It is said in *Placket*v. *Gresham,*3 Salk. 75, “ Where a sheriff takes a bond as a reward for doing a thing, ’tis void, for *it may be*to warrant him in the breach of his duty.” At common law, he could not even refuse to execute process till his fees were paid, and if he did? he was *191held indictable for extortion; and this was said both of a *ca. sa.*and a *fi.fa. Hescott’s case,*1 Salk. 330. *Anon.*id. 331, case 5. In the *Queen*v. *Belwood,*11 Mod. 80, the sheriff was held indictable for a voluntary escape of one committed to *ward*under the warrant of a justice of the peace. Allowing sheriffs to grant the indulgence claimed in the case at bar, besides being a disobedience of the writ, would lead to all manner of extortion as in old times, and before the passing of the act 23 Hen. 6, against taking bonds *colore officii.*This may be seen in the vivid picture of practices which is given by Montague, C. J. in *Dive*v. *Maningham,*Plowd. Cow. 67 ; at page 68, he considers the taking of indemnities against escapes as extortion. The question there was upon a bond taken by a sheriff for a prisoner’s appearance on an execution ; and the chief justice s ays, the prisoner not being bailable, the sheriff took the bond unduly, and *colore officii sui,*which is always taken in *malam partem,*and signifies an act badly done under the countenance of an office, and it bears a dissembling visage of duty, and is properly called extortion. “ Wherefore,” he adds, “ here, inasmuch as the obligation was made for the deliverance of T. M„ who was in the custody of the plaintiff as officer, it cannot be denied but that he took the obligation for his deliverance *colore*officii.” And what is our own statute on the subject, 2 R. S. 214, § 60, 2d ed. ? It is, that “ no sheriff or other officer shall take any bond, obligation or security, *by color of his office,*in any other *case*or *manner*than such as are provided by law ; and any such bond, obligation or security, taken otherwise than as herein directed, shall be void.” This statute is even much broader, both as to subject matter and persons, than the 23 Hen. 6, which may be seen recited at large and much commented upon in *Dive*v. *Maningham.*There are also several cases in this court which hold, that any security taken by the sheriff out of the regular course of the execution will be void. *Orange County Bank*v. *Wakeman,*1 Cowen, 46, 7, and cases cited in note *(a)*there. *Mumford*v. *Armstrong,*4 id. 553. This is not the case of taking a security with the assent of the plaintiff in the writ, or which is the same thing, where the *192plaintiff adopts a security taken without his original assent, as *! .*_ *J*" ’ in *Armstrong*v. *Garrow,*6 Cowen, 465. In *Mosdel*v. Mid*leton,*1 Ventr. 237, it is said a sheriff cannot take a bond from a prisoner even for his fees, because it would give him an opportunity to extort.

There can be no doubt that the promises declared on were merely void, on the plaintiff’s own showing.

Judgment for defendant.