#### Keller *v.*Commonwealth.

A bond taken by the sheriff for ease and favor of a defendant, in the custody of the sheriff for the offence of fornication and bastardy, said bond being given in the name of the Commonwealth, conditioned for defendant’s appearance at the next term of court, is absolutely void, as without authority, against public policy and founded on an illegal consideration.'

Such bond is not helped by the statute of 23 Henry 6, c. 9, enumerating actions bailable by the sheriff, for that statute mentions only actions personal and indictments for trespass.

*Query*whether the statute is not superseded in Pennsylvania, by the Act of 1842, abolishing imprisonment for debt.

As the interest of the prosecutrix in the prosecution for fornication and bastardy does not accrue until the conviction of the defendant, it follows that she has no right to sue on a bond taken for the defendant’s appearance.

Dec. 23, 1852.

Error, No. 18, March T., 1852, to C. P. Monroe Co., to review a judgment on a verdict for plaintiff in an action of debt, by the Commonwealth, to the use of Mary Ann Fetherman, against David Keller, impleaded with George Rafferty. Before Black, C. J., Lewis, Lowrie and Woodward, JJ. Gibson, J., absent at Nisi Prius.

April 29, 1850, a narr was filed which recited the bond and condition, and, for breach, negatived the condition in its words. This narr was not printed in the paper-book of plaintiff in error.

May 6, 1851, an amended narr was filed with two counts. The first count was as follows :

Monroe County,ss : David Keller, late of said county (against whom and a certain George Rafferty a writ of summons in this case was issued and, as to which said George, the sheriff of the said county hath made return that he has nothing in his bailiwick whereby he could summon him), was summoned to answer unto the Commonwealth of Pennsylvania, which in this behalf sues to the use of Mary Ann Fetherman, in a plea that he render unto the said Commonwealth the sum of $300, which to it he owes and from it unjustly detains, &c. Whereupon the said Commonwealth, by William Davis, attorney of the said Commonwealth in this behalf, complains : That, whereas, at a court of quarter sessions of the peace held at Stroudsburg in and for the county of Monroe, at September Session, in the year of our Lord, 1848, to wit, at .the county aforesaid, the grand inquest of the Commonwealth of Pennsylvania, inquiring for the county of Monroe, upon their oaths and affirmations respectively, did present that said George, late of the county aforesaid, yeo*758man, to wit, the aforesaid George Rafferty, on the 24th day of Oct., in the year of our Lord, 1847, at the county aforesaid, and within the jurisdiction of the said court, did commit fornication with a certain Mary Ann Fetherman (to wit, the aforesaid Mary Ann Fetherman) and a male bastard child on the body of the said Mary Ann, then and there did beget, contrary to the form of the Act of Assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsylvania; and thereupon, after-wards, to wit, on the 26th day of September, 1848, at the county aforesaid, there was issued, out of the said court, a certain writ or process, of and in the name of the Commonwealth of Pennsylvania, to the sheriff of the county of Monroe directed, whereby he, the said sheriff, was commanded that he should take the said George and bring him forthwith before the judges at Stroudsburg at a court of quarter sessions of the peace of the said county of Monroe, to answer upon the said bill of indictment for fornication and bastardy preferred by the grand jury of said county against him, which said process was then and there delivered to Andrew Storm, Esq., then and for a long time thereafter sheriff of the said county of Monroe, for execution, and thereupon, afterwards, to wit, on the 9th day of October, in the year last aforesaid, at the county aforesaid, the said Andrew Storm, as such sheriff, took and arrested the body of the said George, under and by virtue of the said process to him directed; and the said court of quarter sessions of the peace of the said county not being then in session, the said George did then and there proffer to the said Andrew Storm, sheriff as aforesaid, the aforesaid David Keller as security for his, the said George’s appearance at the next court of quarter sessions of the peace, in and for the county of Monroe, and the said George and the said David did then and there offer to and agree with the said Andrew Storm, sheriff as aforesaid, to enter into a bond or writing obligatory for that purpose, in order to obtain the liberation of the said George from imprisonment under the said arrest, and thereupon the said George and David, afterwards, to wit, on the day and year aforesaid, at the county aforesaid, by their certain writing obligatory, sealed with their seals, and now here to the court shown, the date whereof is the day and year last aforesaid, did acknowledge themselves to be jointly and severally held and firmly bound unto the Commonwealth of Pennsylvania, in the sum of $300, lawful money of the United States, to be paid to the said Commonwealth, with condition thereunder written, nevertheless, that if the said-George should be and appear at the (then) next court of quarter session of the peace in and for the county of Monroe, to be held at Stroudsburg, on the 26th day of November, 1848, then and there to answer all things that should be objected against him on account of the said bill of indictment, and not depart the said court without being legally discharged according to law or deliver himself up to the custody of the sheriff, to be dealt with according to law, then the said obligation to be void or else to be and *759remain in full force and virtue; and thereupon the sheriff, in consideration of the execution and delivery to' him of the said writing obligatory did not commit the said George to prison under and by virtue of the said process, but permitted him to go at large, and, on the said 26th day of November, in the year last aforesaid, at Stroudsburg, to wit, at the county aforesaid, made return to the judges of the said court, at a court of quarter sessions of the peace then and there held in and for the county aforesaid, that, in pursuance of the said process, he had arrested the said George therein named and took bail for his appearance. This count, then, for breach of said bond, negatived the condition thereof.

The second count recited the bond and condition; and averred that theretofore, to wit, at the Sept. Session, 1848, at a court of quarter sessions of the peace of the said county of Monroe, a bill of indictment was found by the grand inquest inquiring for the body of the said county, and presented to the said court against the said George for having committed fornication and bastardy with the said Mary Ann Fetherman, and begetting upon her body a male bastard child; and that, on the said 9th day of October, in the year last aforesaid, the said George was in the custody of the said Andrew Storm, sheriff of the said county of Monroe, in virtue and pursuance of a process or capias issued out of the said court of quarter sessions of Monroe county, for the arrest of said George to answer the said indictment, to wit, at the county aforesaid, as recited in the said writing obligatory; and, for breach of said writing obligatory, negatived the condition thereof.

Defendant’s special plea was as follows: Defendant, David Keller, comes and defends, &c., and craves oyer of the said supposed writing obligatory, and the condition thereunder written in the said declaration mentioned, and it is read to him in these words [ here the copy of the bond and condition are inserted in the plea,] which being read and heard, the said David says that the said plaintiff ought not to have or maintain her aforesaid action thereof against him, because he says that, at the September Session, 1848, of the court of quarter sessions of the peace of Monroe county, there was a bill of indictment (the same indictment in the plaintiff’s declaration and the above recited condition mentioned,) for fornication and bastardy upon the body of the said Mary Ann Fetherman, found and preferred against the said George Rafferty by the grand inquest of the Commonwealth of Pennsylvania, inquiring for the county of Monroe, and that, on the 26th day of September, 1848, there was a writ of capias issued out of said court of quarter sessions, commanding the (then) sheriff of said county (Andrew Storm, Esq.), to take the said George and bring him forthwith before the judges at Stroudsburg, at our court of quarter sessions of the peace of the county of Monroe, to answer upon said bill of indictment for fornication and bastardy so found and preferred against him (which said indictment was then and there pending and wholly undetermined), *760which said capias was then and there delivered to said sheriff, Andrew Storm, Esq., by virtue of which said writ, Andrew Storm, Esq., the (then) sheriff of said county, on the 9th day of October, 1848, arrested the said George and had him in custody under color of said writ until he the said David and the said George, afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, and while the said George was in the custody of the said sheriff, executed the said supposed writing obligatory, with the condition above mentioned, in order to obtain the discharge of the said George out of the custody of the said sheriff, and for ease and favor to be shown to said George by said sheriff, which said supposed writing obligatory said sheriff then and there took and accepted by color of his said office of sheriff for ease and favor to be shown to said George, and in consideration of the discharge of the said George from the custody of said sheriff; and, thereupon, then and there, the said sheriff set the said George at liberty, and permitted him to escape and go at large, contrary to the laws of this Commonwealth, and the said defendant saith that the said supposed writing obligatory is void in law, and this he is ready, &c.

Plaintiff’s replication averred that the said writing obligatory was not taken and accepted by the said sheriff by color of his office for ease and favor to be shown to the said George by the said sheriff, •and in consideration of the discharge of the said George by the said sheriff, nor did the said sheriff thereupon set the said George at liberty, and let him escape and go at large contrary to the laws of this Commonwealth; nor is the said writing obligatory void in law, as by the plea of the said David is averred and supposed. But, on the contrary thereof, the said writing obligatory was so taken by the said sheriff in good faith, for the purpose of securing and procuring the appearance of the said George at the then next court of 'quarter sessions of the peace of Monroe county, when so arrested as aforesaid, in manner and form as the said plaintiff hath above thereof declared as aforesaid against the said David.

On the trial, the case was proceeded in as follows, before Eldred, P. J.:

Plaintiff gave in evidence the indictment against George Rafferty, the writ of capias and sheriff’s return thereon that he had arrested the said George and taken bail for his appearance, and the bond upon which suit was brought.

Plaintiff then called the prosecuting attorney and offered to prove by him that George Rafferty did not appear at Nov. Sessions, 1848. Objected to, objection overruled and exception. [1] The witness then testified to that effect.

The plaintiff thereupon closed his case. The defendant gave no evidence.

The court charged the jury that, as there was no dispute about the facts of the case, they should find a verdict for the plaintiff for the penalty of the bond, together with six cents damages and six *761cents costs, subject to the opinion of the court whether, upon the undisputed facts given in evidence, the plaintiff was legally entitled to recover; if not, then for the defendant. To this charge both parties excepted, and the court sealed an exception.

The jury thereupon found the following verdict: “ We find for the plaintiff the sum of $300, together with six cents damages and six cents costs, subject nevertheless to the opinion of the court whether, upon the undisputed facts given in evidence, the plaintiff is legally entitled to recover; if not, then for the defendant.”

The court gave judgment for plaintiff on the special verdict as follows: “Dec. 27, 1851, the court is of opinion that the plaintiff is entitled to recover, and enters judgment for the plaintiff for the sum awarded by the jury, on the last count of the narr, filed May 6th, 1851.” Exception.

*The specifications of error*alleged the action of the court, 1, in admitting the evidence contained in the first bill of exceptions, without quoting bill or evidence; 2, in directing the jury to find in manner and form as stated, without quoting it — they should have directed the jury, upon all the facts given in evidence, to find generally for the defendant; 3, in entering judgment on the verdict of the jury, in favor of plaintiff; and, 4, the verdict of the jury is erroneous in this, that it does not find the necessary facts upon which the court could enter judgment.

*Mr M.*Dimmick, for plaintiff in error.

The charge of the court should have been in favor of the defendant generally. From all the facts given in evidence, as well as by the averments contained in the declarations, it must be conceded that this bond was given by Rafferty and Keller, whilst Rafferty was in the custody of the sheriff, and to obtain his deliverance from imprisonment, and so given for ease and favor, and taken by the sheriff by color of his office.

The bond on which this suit is brought is void under the statute 23d Henry 6, c. 9, which is in force in Pennsylvania, as was ruled in the case of Koons *v.*Seward, 8 Watts, 388, where the court held that its principles embraced all bonds given to the officer or taken by his direction. And in Claasen *v.*Shaw, 5 Watts, 473, the court say the statute extends to bonds by or for prisoners, not taken in accordance with its provisions, and also to bonds which any, in the sheriff’s ward, make to the sheriff.

The defendant, Rafferty, was a prisoner under arrest, and the bond in question was given to, and accepted by, the sheriff for Rafferty’s deliverance from said imprisonment. The first count in the amended narr avers the arrest under the capias; that he was in the custody of the sheriff; the proffering the bond to him by Rafferty with Keller as security ; then the giving of the bond to obtain the liberation of Rafferty from said imprisonment; and,in consideration of the delivery of said bond to the sheriff, he did not *762commit said Rafferty to the jail of the county. The second count recites the giving the bond by Rafferty and Keller, and, after stating the same with the condition thereof, avers that the said Rafferty was in the custody of Sheriff Storm on. said capias, to answer said indictment; with a further averment, that Rafferty did not comply with the condition of said bond.

This bond is not good as a statutory obligation, for there is no statute authorizing it; and, under the statute of 23 Henry 6, c. 9, which authorizes the sheriff to take bail in the cases therein enumerated, and in the manner and form therein provided and not otherwise, the sheriff, under the provisions of the statute, is expressly forbidden to take bail for persons arrested on a capias utlagatum; which, it is submitted, forbids his taking bail in this case, and therefore renders the bond a nullity.

In the case of Claasen *v,*Shaw, it appears the case was made to turn on the. fact that the defendant’s body had not been arrested, and he was not a prisoner at the time the instrument was given. As the justice’s execution stood in place of a fi. fa. and ca. sa. in the absence of an averment or proof to the contrary, the intendment was that the defendant had goods sufficient to answer the plaintiff’s demand, and that his body was not liable, or had not been taken in execution.

In the case of Koons *v.*Seward, Sergeant, says, “ it results that the undertaking in this case, if given to the plaintiff, is *good;*if to the officer, it was invalid.” In the present case, the bond was taken by the officer, in the name of the Commonwealth, and it can not be said to be given to the plaintiff, in the sense referred to by the judge, where a plaintiff and defendant could agree and treat with each other without the agency of the officer, in reference to a debt, or other claim, in which they were interested.

As a recognizance, it cannot be binding. As a bond, it was compulsory. As a bond required by law, it is void. As a voluntary bond, good at common law, it cannot be supported. It was given under confinement, and to relieve Rafferty from imprisonment; it was illegally required. See the reasoning of Judge Duncan in the case of Beacom et al. *v.*Holmes, 13 S. & R. 191; also McKee *v.*Stannard, 14 S. & R. 382.

If the money is recoverable on this bond, without a power somewhere to abate the amount, as in case of forfeited recognizances, then the sheriff, in all cases of capias on indictment for misdemeanors and felonies, may take like bonds in any amount, and.many of the evils which were intended to be corrected by the British statute, may exist in Pennsylvania. It would be a discretion which could be used to usurp the right of the judges to admit to bail in almost all criminal cases.

Bengough *v.*Rossiter, 4 Term Rep. 505; s. c. 2 PI. Bl. 418: A bond given to the sheriff, conditioned for the appearance of a person arrested by him on process issuing on an indictment at the quarter sessions, is void. “ The sheriff can only take a recognizance for his *763appearance.” This latter is but a dictum, and was not the point decided. This case resembles, in many respects, the one under consideration, and would seem to settle the illegality of this bond.

Jan. 17, 1853.

Love *v.*Palmer, 7 Johns. 159: A bond to indemnify a sheriff for not taking to prison a person against whom he had a ca. sa., is .void. See the decisions under the New York statute, which is said to be a copy of 23 Henry 6, c. 9: Richmond *v.*Roberts, 7 Johns. 319; Strong *v.*Tompkins, 8 Johns. 98; Sullivan *v.*Alexander, 19 Johns. 233; Thompson *v.*Lockwood, 15 Johns. 256. See also 15 Johns. 447, and Blethman *v.*Martin, Bulstrode, 213.

Watson on Sheriff, page 159: On capias utlagatum, the sheriff cannot admit defendant to bail. Same book, page 160: Power of sheriff to admit to bail, confined to civil cases entirely. Dive *v.*Manningham, 1 Plowdon, 60. See the reasoning of the judge in this case.

Act of 1705, Dunlop, ed. of 1849, page 49: Prisoners shall be bailable by one or more sufficient sureties, to be taken by one or more of the judges or justices that have cognizance of the fact, unless for such offences as are, or shall be, made felonies of death by the laws of the Commonwealth.

Act of 1772, Dunlop, page 74: Justices of sessions have full power and authority, in and out of sessions, to take all manner of recognizances and obligations, as any justice of the peace of Great Britain may, can or usually do.

The verdict of the jury does not find the issue formed by the pleadings; nor does it find the necessary facts on which the court could enter judgment. The undisputed facts, as well as the disputed facts, should have been found and stated in the verdict: Walling-ford *v.*Dunlap, 14 Pa. 31.

*J. M Porter,*was heard for defendant in error,

but the reporter has been unable to procure his paper-book.

Woodward, J.,

A sheriff has no more right to bail a prisoner arrested for the offence of fornication than he has to bail for any other misdemeanor. It is apparent from the record that the bond now in suit was taken by the sheriff for ease and favor, and therefore void at common law. It is not helped by the statute of 23rd Henry 6, c. 9 (if, indeed, that statute be not superseded in Pennsylvania by our Act of Assembly abolishing imprisonment for debt), because it mentions only actions personal and indictments for trespass as bailable by a sheriff, not crimes and misdemeanors. These are bailable only by recognizance taken before civil magistrates and returned to the proper court. The sheriff has no power to take a recognizance for the appearance of a person charged with a public offence, and quite as little to take a bond. His duty, having arrested the offender, is to detain him in custody till discharged by a judicial officer in due course of law. This bond was without au*764thority, was against public policy and founded on an illegal consideration. It was therefore absolutely void.

If it was not, this plaintiff would have no right of action on it, for it has been settled in this court that the prosecutrix in fornication and bastardy acquires no interest in the prosecution until the conviction of the defendant. Before conviction, or even trial, of defendant, she has no right to sue, in the name of the Commonwealth to her. use, on a bond taken for the defendant’s appearance.

The judgment is.reversed.