delivered the opinion of the Court. — Two questions are here presented for the consideration of the Court. 1st; Can any action be sustained ? 2d. Should it not be brought in the name of the deputy sheriff?
With respect to the first question, we would remark, that it is essential to the validity of every simple contract, that it be founded upon a legal or moral consideration ; such consideration being the very essence of a contract. It would be against sound policy, and the well established principles of law, to enforce one otherwise made. It appears from the declaration, that the officer, onthellthof June, 1827, arrested and took the body of one John Shoers, on execution, and was about to commit him to jail, when the defendant, in consideration that the officer would suffer the said Shoers to remain with the defendant, and in his keeping, promised that he would on the 20th of June have the said Shoers forthcoming at the common jail in said county, to be com-raited on and byviriue of said execution.
W. Maltoclcs, for defendant, S. Cushman., for plaintiff.The only point raised by the counsel in this question, is, with regard to the legality of the consideration. It is a well settled principle, that a promise to induce an officer to neglect his duty, or 10 indemnify him against an illegal act, cannot be enforced. 13 Johns. 366, also, other cases cited by defendant’s counsel.
It is the duty of the officer, on levying the execution on the body of the debtor, to keep him in close and safe custody, and conduct him to jail, in the most direct manner, as soon as convenient. It is a clear principle of common law, that if the officer, after he has taken a debtor, permits him to go at large out of his custody, it will be a voluntary escape, and a breach of dijty, for which he would be liable, though he should retake and commit him within the life of the execution.
In this case there was clearly a voluntary escape, and being illegal, and a violation of the officer’s duty, the contract made to induce it is void, and cannot be enforced, for want of sufficient consideration. If the defendant had fulfilled his undertaking, and had the debtor forthcoming within the life of the execution, it would not have discharged the officer from his liability ; for the debtor, if committed, might have procured his release. Should it be said that the defendant was in the wrong, it maybe admitted, and still the plaintiff not entitled to recover, for where both are in the wrong, better is the condition of the defendant. The view we have taken of the cause supercedes the necessity of remarking upon the second question.
Judgment arrested.