The action is on a voluntary bond executed by the defendant; it is under seal, Which implies a consideration, and expresses an actual Consideration as well. The bond was not to the sheriff but to the judgment creditor. Such bonds are not affected by the. statute in reference to obligations exacted by the sheriff, colore offievi. *236The creditor may make such agreement or take such security as he pleases on discharging his debtor from arrest, so long as the officer has no beneficial interest therein (Winter v. Kinney, 1 N. Y. 368; Cook v. Frendenthal, 80 Id. 202; Soles v. Adee, 84 Id. 237. The. breach was clearly proved. There was no legal defense and the judgment is right'. The exception at fol. 45 is of no value, as the question ruled out has no pertinency' to any issue raised by the pleadings!
It follows that the judgment. must be affirmed, with costs. , . ■
Hehrbas and Hyatt, JJ., concur.