IN BANK. arrest was illegal; and in those cases the bonds were avoided Dec. Term, by statutes against ease and favor in those States. We have no such statute, and the case before the Court depends on com

1846.

mon law principles.

"Defects in judicial process or proceedings, can only be taken advantage of by those who are injured thereby." Jackson v. Bartlett, 8 Johns. Rep. 361.

"On a recognizance of bail, the sureties cannot set up the bankruptcy and discharge of their principal as a defence." Donnelly v. Dun, 2 B. and P. 45.

"In an action of debt on a recognizance of bail, the sureties cannot set up as a defence that the ca. sa. was improperly 'issued." Gillespie v. White, 16 Johns. Rep. 117.

"In an action on a constable's bond, his sureties cannot set up as a defence, that the execution on which he received the

money was void." Landon v. Erwin, 9 Wend. Rep. 237.

A surety cannot take advantage of the duress of the principal. Gummond v. The People, 1 Hill 346.

"In an action of debt on a replevin bond against a surety, he cannot set up as a defence, that the goods replevied were the plaintiff's on replevin, and were attached as such by defendant, who was sheriff, on mesne process against the plaintiff in replevin." Flagg v. Tyler, 3 Mass. Rep. 302.

"A debtor arrested by a sheriff on a ca. sa., and permitted to escape, is again arrested, and to obtain his discharge gives a prison bounds bond; bond good." Brown v. Gitchel, 11 Mass Rep. 11.

If I am right in the position I have taken, that the duress of the principal is no defence to this action, it follows, as a corollary, that all the other pleas of securities to which I have demurred are defective, and are not a defence to this action; for these pleas, all presuppose, that by reason of matters and things therein contained, the writ on which L. Robinson was arrested was irregular and void, consequently the arrest was illegal, which illegal arrest constitutes the duress pleaded. Now, if the duress, which was the legal consequence of those

Hyatt v. Robinson and others.

1846.

matters and things set forth in the pleas, is not a defence, it fol- IN BANK. Dec. Term, lows, I say, that the pleas themselves are not a defence, or if the duress is not a defence, that which constitutes the duress cannot be. The parts cannot be greater than the whole; and proof that the writ on which the arrest was made was void on its face, would not sustain the plea of duress.

As to the joint plea of all the defendants, it is contended that the recital of the writ in the condition of the bond estops the defendants from denying the validity of the writ. If the writ was void, it was not a writ; but the condition admits the issuing of the writ, which presupposes it was a valid writ.

"The recital of an execution in a prison bounds bond, pre'cludes the party from denying there was such execution; so 'the recital in such bond, that A B was jailor, estops the party 'from denying he was jailor." 2 Littell's Rep. 211.

The defendants in an injunction bond, reciting an injunction, are estopped from denying the validity of the injunction, though it was void, or the authority of those who ordered or issued it. Ibid. 310.

"In an action on a prison bounds bond, reciting that the 'party' was charged in execution,' he is estopped from denying that fact, although that he should have been thus charged was ' essential, when in fact he was not so charged." Jones et al. v. Pruvit et al., 3 Marshal's Rep. 303.

“In a suit on a forthcoming bond, for the delivery of goods, 'the obligors are estopped from denying any admissions made in the recital of the bond or controverting their existence; 'therefore, the production of the execution recited is unnecessary, the recitals in the condition being conclusive." Crisman et al. v. Mathews, 1 Scam. Ill. Rep. 151.

"In an action on a replevin bond, the defendants are estop'ped from denying the constitutionality of the law under which 'the bond was executed." Magruder v. Marshall, 1 Blackf. Rep. 333; Weaver et al. v. Field et al., Ibid. 334.

"In an action of debt on a bastardy bond, the defendants 'are estopped from denying the facts set forth in the recital of

1846.

Hyatt v. Robinson and others.

IN BANK. the condition of the bond." Trimble v. State, 4 Blackf. 435. Dec. Term, "It was stated in the condition of an attachment bond, that 'an attachment had issued, and the condition was set out in declaration. Held, on general demurrer, that a plea denying the attachment had issued was inadmissible." Love v. Kidwell et al., Ibid. 553.

"Where an execution issued against an individual against whom there was no judgment, and who was not a party to the original suit, but who gave a replevin bond reciting the execution; held he was bound by the recital." Hudson v. Morris, 1. Wash. Rep. 70.

"On a motion on a forthcoming bond, the defendant is not "allowed to prove that the execution and judgment was against "another person of the same name with him and not against

himself." Dowman et al. v. Dowman et al., 2 Call's Rep. 507. "The defendant is estopped by recitals in his deed." Shelly v. Wright, Wille's Rep. 9.

Estopped by recitals in the execution of a bond." Hever v. Searle, 2 B. and Pul. 299.

"In a suit upon a writ of error bond, reciting that the defendants had obtained writ of error and supersedeas, they are estopped from denying these facts." Reynolds et al. v. Rogers, 5 Ohio Rep. 178, per Cur.

"Where a prison bounds bond states the amount of execution for which a party was in custody, it is conclusive of that 'fact, and the amount cannot be denied." Talmadge et al. v. Richmond, 9 Johns. Rep. 86.

"In an action on a bastardy bond, the party is estopped by 'the bond from alledging that the place of settlement was any ' other than that set out in the bond." Falls et al. v. Belknap, 1 Johns. Rep. 486.

"The recital of a ca. sa. in a prison bounds bond, is a suffi'cient proof of it in an action on the bond-the writ need 'not be produced."; Ransom v. Keyes, 9 Cowen's Rep. 128. If the recital of the writ be conclusive of its legal existence, such writ cannot be denied as a matter of fact or of law.

Hyatt v. Robinson and others.

"The defendant's bond reciting an acquittal, estops him from IN BANK.

denying it, by the common law, and the estoppel may be set up by demurrer." Gumond v. The People, 1 Hill's Rep. 346.

"Upon a scire facias against bail, they cannot deny the arrest of their principal. They are estopped by the recital of the ' arrest. In a suit on a bail bond admitting or reciting the ar' rest of the principal, the securities would not be permitted to ' deny that fact." Bean v. Parker et al., 17 Mass. Rep. 591, 600.

"Obligors to an administrator's bond are estopped by the < recital in the bond to deny the appointment of an administra<tor." Cutler v. Dickerson, 8 Pick. 386.

1

"Without multiplying authorities on a point rendered clear ' by numerous cases, it is sufficient to state, that a party to a 'deed is estopped, not only from disputing the deed itself, but ' every fact it recites." Slow v. Wyse, 7 Conn. Rep. 220. "A party to a deed, who, thereby, admits himself a principal, is estopped from denying that fact. The doctrine of estoppel is founded on reason and justice, and is abundantly 'sustained by authority." Bank of Mount Pleasant v. Sprigg, I McLean's Rep. 182; Same case, 10 Peters' Rep. 257.

"A recital of a previous lease, in a deed of marriage settle'ment, is conclusive evidence, between the parties, of the exist'ence of such lease, and supersedes the necessity of introducing any other evidence to establish it." Carver v. Jackson et al., 4.Peters' Rep. 83.

Where the matter of estoppel appears by the pleadings, as it does in this case by the declaration in which the bond and condition are set out, such estoppel may be taken advantage of by demurreras to plead that anew which already appears, would be useless. Most of the cases to which I have referred, were on demurrer. See 1 Chit. Plead.; Salk. 370; 2 Littell's Rep. 310; Pirtle's Digest, 370.

Even, as to Lewis Robinson, the defence here set up cannot be sustained, it is conceded, unless the sheriff who executed

Dec. Term, 1846.

Dec. Term, 1816.

Hyatt v. Robinson and others.

IN BANK. the writ was a trespasser at that time. Could an action of trespass have been sustained by Lewis Robinson against the sheriff for arresting him on the writ set forth in the bond? The writ, on its face, showed it to have been issued by a court of competent jurisdiction over the person and subject matter, (this is shown by the pleadings,) and was, therefore, when executed, when the bond was taken and when this suit was brought, a justification to the officer. A sheriff is certainly not responsible for the errors which a superior court may decide an inferior has committed. In this case, the writ was not quashed, and the order of the court directing it to issue, not reversed, until after this case was appealed by defendants. Suppose a writ, regular on its face, issue on a judgment, afterwards decided to be void or erroneous, or even without any judgment, it is certainly the duty of the officer to execute that writ, and it will be a justification to him of his proceedings under it. The subsequent reversal of the judgment, or the quashing of the writ, will not make him a trespasser by relation. If the writ in this case, when it was executed, was a justification to the sheriff, as we say it was, there was, then, no trespass committed by him, consequently no duress. The subsequent reversal of the order directing it to issue, and quashing the writ, could not render that a trespass which was not so when done, nor could it affect the bond, or heal the breach of the condition thereof, which had been made and sued for before such reversal or quashing. For these reasons, also, the last and joint plea is bad, independent of the doctrine of duress and estoppel, for which I have contended.

Our statute in relation to imprisonment for debt is similar to, if not a transcript of the New York statute; and there it has been decided, "That an order to hold to bail need not be indorsed on the writ; it is sufficient that it exist;" Carter v. Drake, 10 Wend. The writ, then, on its face was good. It recited the order of court. If so, the officer was not a trespasser.