Strong v. Tompkins

Per Curiam.

The plaintiff, as deputy sheriff, took the note in question, instead of taking bail of Pitcher and Spoor. He took it by way of indemnity, and under the penalty of a forfeiture of the note, if he was not indemniiu d ; and the note was to be applied towards the settlement of the demands, for which P. and S. were sued. All this agreement was absolutely void, by the statute, (Laws, vol. 1. p. 210.) which declares, that “ no sheriff or oilier officer shall take any obligation, for any cause aforesaid, or by colour of their office, but only to themselves, and by the name of their office, and upon condition written, that the prisoner named therein shall appear at the day and place required in the process ; and if any sheriff, or other officer, take any obligation in other form, by colour of their office, it shall be void.5 Though the statute speaks only of an obligation; yet it has been long settled, under the statute of 23 Hen. VI. of which our act is a copy, that a promise to save harmless is equally within the statute. (10 Co. 101. b.) The plaintiff in this case, as it appeared upon the trial, had no right of property in the note. He was not the legal holder, because the assignment to him was a nullity; and he had no more right to sue the defendants than if the name of the payee had been forged. To give effect to such contracts would lead to the greatest abuse and oppression, and would be suffering the provision of a very beneficial statute to be eluded.

Motion to set aside the nonsuit ought to be denied.

Motion denied.(a)

(a) See Love v. Palmer and others, (7 Johns. Rep. 159.) Reed v. Pruyer and Staats, (7 Johns. Rep. 426.)