Hyatt. Robinson and others,

in office, decided - Mr. Justice Story delivering the opinion of IN Bank.

the Court that the bond was illegal and void, as to the sure

ties, as well as to the principal.

In the case of Cordis v. Sager et al., 14 Maine Rep. 475, it was declared by the Court, that the defendants the sureties as well as the principal are not estopped by the recitals in

the bond, if obtained by duress of the principal.

The case of Aiken v. Richardson, 15 Vermont Rep. 500, already cited upon another point, being an action against a surety, is, also, applicable to this branch of the case.

In Thornhill y. Christmas, 10 Robinson's La. Rep. 543, it was decided, that the surety in a bond, taken under a writ of arrest, cannot be made liable, where the writ was illegally issued.

The case of Thompson v. Lockwood, 15 Johns. Rep. 256, presents the direct question, as to the liability of a surety upon a prison bounds bond, which, by reason of the duress of the principal, is void as to him. In delivering the opinion of the Court, Spencer, J., after referring to the case of Huscombe v. Standing, in Croke James, (already mentioned as the only English case relied upon by the present plaintiff, says: "As a general principle it cannot be controverted, that if a bond be 'obtained from A and B, by duress against A, B cannot plead 'the duress against A to invalidate the bond, as against him. This, however, is applicable to cases depending on common 'law principles, and where there is no statutory provision inter'posed. Sheriffs can take no bond, or other security, in ' matters relating to the execution of their offices, but only to 'themselves, and by the name of their office, with such conditions as the law prescribes; and any obligation taken by a sheriff in other form, by color of his office, is declared void; '1 N. R. L. 423, 424. And the act relative to goal liberties, (1 N. R. L.. 427,) making it the duty of sheriffs to let prisoners, on civil process, go at large within the limits of the liberties, on giving security, is a mere modification and exten'sion of the former act. Perhaps, as the bond here taken was

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IN BANK. Dec. Terin,

1846.

6

Hyatt v. Robinson and others.

in the terms prescribed by the act, it cannot be said to be void, as being taken colore officii. But the taking the bond was unlawful, and the condition itself was void. Lawrence could not remain a true and faithful prisoner, upon executions on which the sheriff had no right or power to detain him. The bond had no more validity than if the sheriff had taken it without any execution in his hands against Lawrence. A 'condition that a man shall not plow his land, or go out of his house, being in restraint of a common right, is void; Bacon's Abr. Oblig. E. 3. Conditions in restraint of trade have been adjudged, repeatedly, to be void; and, among other reasons, as against the public good, by depriving the party of his means of livelihood. Bacon, tit. Bond, K."

But, that the obligors are not estopped, if the bond were obtained by duress, is clear. It was so held in the case of Cordis v. Sager, 14 Maine Rep. 477, already cited. The truth is, the doctrine of estoppel has its appropriate application only to deeds that are well executed. It has no application to deeds, the execution of which is illegal or void; for to apply it to such cases would be to bind a party by a void act.

At any rate, in so far as the recitals relate to the consideration upon which the bond is founded, the statute submitting the consideration to inquiry overrides the rule, and rids us of this odious thing of estoppel, which, as shutting out the truth, is disfavored of law. In this State the artificial rule yields to legislative enactment.

But, independent of statutory aid, it has been expressly decided, that a prison bounds bond, reciting a ca. sa. when the arrest was, in fact, under a fieri facias, shall not estop the obligor from showing the fact, as against the sheriff or his assignee, and thus avoiding the bond. Miller v. Bagwell, 3 McCord's Rep. 429; see, also, 3 Cowen & Hill; 2 Phillips on Ev. 1237, notes.

Again: This is a joint action against three defendants; the principal and two sureties. The plaintiff must fail, therefore, unless he show a joint liability. Now, that the duress of the

Hyatt v. Robinson and others.

Dec. Term, 1846.

principal defeats the action, as to him, is admitted. It shows IN BANK. that he never was liable, jointly, with his co-defendants. In Eliot v. Morgan et al., 7 Carr & Payne, 334; 32 Eng. C. L. Rep. 530, which was assumpsit against three defendants, Coleridge, J., says: "Although the defendant, W., has admitted, 'by his separate plea, the joint contract on the record, yet if the ' other defendants succeed in showing that they are not jointly liable, the plaintiff must fail as to all; and it is competent for 'the two defendants, under their plea of the general issue, to ' avail themselves of the defence, that too many defendants had 'been joined in the action." So, also, Mott v. Petrie, 15 Wend. Rep. 317; Wolcot v. Canfield, 3 Conn. Rep. 198.

The demurrer, therefore, as to the seventh plea of the sureties, and the third plea of the principal, is not well taken.

Sixth: As to the tenth plea of the sureties, and fourth plea of the principal, alledging that the ca. sa., issued under a supposed order of Court, allowing the same upon the affidavit of the plaintiff, that the principal was about to remove his body out of the jurisdiction of the Court, and without any other cause or ground alledged for such writ, and traversing the charge contained in the affidavit.

What has already been said in relation to the nature of a ca. sa., issued without other testimony, is applicable to this plea, and shows the writ void.

Seventh: The last plea― being the joint plea of all the defendants - sets up that the ca. sa. has, since the appeal of this cause to the Supreme Court, been set aside and quashed, and also that the order allowing the same has been set aside, rescinded and vacated, by an order of the Supreme Court, duly made in the premises, which is still in full force and unreversed.

The matters contained in this plea are a complete bar to the action, as well for the sureties as the principal. For, although a ca. sa., voidable for irregularity—not void-is, before it is set aside, a protection to the party suing it out, as well as to the officer executing the process, yet, when afterwards set aside, it ceases to protect the party for any acts done under it

Hyatt v. Robinson and others.

IN BANK. while in force. The case, then, stands precisely as if no such erroneous process had ever existed.

Dec. Term, 1846.

The law is well stated in the opinion of the Court in Chapman v. Dyett et al., 11 Wend. 31, which was an action of trespass, for false imprisonment, against a party who had sued out a ca. sa. against the plaintiff, and caused him to be arrested. The writ being voidable, not void, was afterwards set aside. Savage, C. J., after stating that voidable process always protects an officer in acts done, while it is in force, although subsequently set aside, says: "It is true, as contended by the defendants, that when the arrest was made, no trespass was, in fact, committed; but the doctrine of tres'pass by relation is as well settled as any in the law, at least since the Six Carpenters' case. When the ca. sa. was set 'aside for irregularity, it ceased to be a justification to the par'ties guilty of the irregularity; as to them it is void, and as if ' it had never existed. The arrest, therefore, by relation, became void and without authority, and the action of trespass was the proper action." Judgment for the plaintiff. So in Coddrington v. Lloyd, 8 Adol. and Ellis 467; 35 Eng. C. L. Rep.; which was also trespass for an assault and false imprisonment, under a voidable ca. sa., sued out by the defendant against the plaintiff, under which the defendant was arrested, and which was afterwards set aside. The action was against both the party and the attorney who issued the writ.

Lord Denman, C. J., says: "The plaintiff here was arrested 'on a writ, which was afterwards declared by the Court irregu'lar. It was, therefore, as if there had been none." So also, Patterson, J.: "The action lies against the party, because the 'process, when set aside, is as if it had never existed, and if the party cannot justify under it, neither can the attorney." The plaintiff had judgment against both defendants. See also, Hayden v. Shed, 11 Mass. Rep. 300; per Jackson, J., Luddington v. Peck, 2 Conn. Rep. 700; Barker v. Braham, 3 Wils. Rep. 368; the Six Carpenters' case, 8 Coke 293.

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Dec. Term 1846.

The quashing of the writ and annulling of the order award- IN BANK. ing it, left the plaintiff, therefore, without any authority whatsoever to sustain the arrest and imprisonment of the principal defendant.

Again: It was not necessary that the defendants should have set up the quashing of the process and the rescinding of the order, to avail themselves of the defence that the writ was void. The authorities already cited show, that when the writ is set aside, the parties stand as if it had never been issued. The order setting aside by relation, extends back to the issuing of the writ. It enables the defendants to show what the law now adjudges to have been the true character of the writ when issued. It removes the obstacle in the way of showing that the writ was absolutely void. It is matter of evidence only. The rule is settled, that in all cases where the act done, after plea pleaded or suit brought, extends back by relation to a period prior to the commencement of the suit; it is not necessary to plead it puis darrein continuance. Jackson v. McCall, 3 Cowen Rep. 75, is directly to the point. The defendant offered in evidence two sheriff's deeds, for lands sold before the commencement of the suit, both of them, however, executed and delivered after issue joined in the case. The plaintiff objected that the deeds were inadmissible, except under a plea puis darrein continuance. Curia, per Sutherland, J.: "Admit'ting that, by relation, the deeds are to be considered as having 'been given at the time of the sale, does that dispense with the necessity of pleading the fact of delivery, according to its 'truth, puis darrein continuance? I am of opinion that it 'does. The defence relied on was the title acquired under the sheriff's sale. When did that title vest in the defendant? is the point of inquiry. If before the commencement of the 'suit, it was available under the general issue: If after issue 'joined, it should have been pleaded puris darrein continuance, ' and the date, or time of delivery of the evidences of title, is 'perfectly immaterial. The legal effect and operation of such ' delivery is the matter of defence, and not the instrument