[13 c] Apr. 155. Ro. 1 Abr. 417. to the place wasted, because it is personal unto the sheriff himself. Hereof it follows, that a sheriff will make an under sheriff, provided that he shall not serve executions above twenty pounds, without his special warrant, this proviso will be void; for though he may choose not to make an under sheriff at all, or may make him at his will, 3 Cro. 440. 9 and so remove him wholly, yet he cannot leave him an 4 Co. 33. under sheriff and yet abridge his power, no more than the a. Noy 51. 3 Cr. 440. Co. 9. king may in case of the sheriff himself. But it was said here that the case here was not so, that the restraint of power not to be executions above twenty pounds, grew not on the part of the sheriff, but on the part of the under sheriff by his covenant, which might stand for good, notwithstanding Co. L. 206. b. the repugnancy to his office. As a feoffee in fee simple, may bind himself to the feoffor not to alien, though the feoffor cannot restrain him himself by condition, for the 31. b. Under sheriff's restrained. Dy. 66. b. Plowd. 60, Dive v. Manningham; 7 Johns. 159, Love v. Palmer; Yelv. 197, Martyn v. Blithman; Dyer 323. b. Ligeart v. Wiseham; 5 Mass. 317, Morse v. Hodsdon & al.; 8 Johns. 98, Strong v. Tompkins; 4 East 568, Sedgworth v. Spicer; 5 Mass. 385, Denny v. Lincoln;-541, Churchill v. Perkins; 4 Mass. 370, Ayer v. Hutchins; Cro. Eliz. 199, Featherston v. Hutchinson. No set form of words is necessary in the condition; but if it is, in effect, that the party shall appear according to the design of the writ, it is sufficient. 2 Str. 1155, Shuttleworth v. Pilkington. It is not necessary to insert the nature of the action; 2 Show. 51, Gardner v. Dudgate, n. (c.); and if it is inserted informally or incorrectly, the variance is immaterial. Cro. Ja. 286, Villiers v. Hastings. If the appearance, day and party are well expressed, this is all that is necessary. 6 T. R. 702, Owen v. Nail. 1 Johns. 521, Stevens v. Clancey. 9 East 55, Jones v. Stordy. So a bond taken by a sheriff to indemnify him for an unlawful act already done, e. g. an escape already suffered, is good. 11 Mod. 93, Hachet v. Tilley. 1 Caines 450, Given v. Driggs. 6 Mod. 225, Fox v. Tilley. And a bond given to a sheriff to induce a less rigorous confinement, if the indulgence be such as is consistent with his duty, is not a bond for ease and favor. 2 Johns. Ca. 239, Dole v. Bull; and a bond given by one in execution, conditioned to be a true prisoner and not to escape, if not given for ease and favor, is good. Dole v. Bull, ub. sup. 1 Saund. 161, Lenthal v. Cooke. 2 Salk. 438, Anon. Dyer 323, n. (32). So a contract to indemnify the sheriff for seizing on a fi. fa. certain specified goods, is not within the statute; Cro. Ja. 652, Arundel v. Gardner; and if the goods are not in possession of the debtor, or the property is in dispute, the sheriff may require such indemnity. 4 Mass. 60, Marshall v. Hosmer. And a bond to the sheriff that the party on a fi. fa. shall pay the money into court at the return of the writ is not within the statute, because the statute extends only to obligations made by persons in custody. Bac. Abr. Sheriff, O. If the sheriff takes a bond which varies from those provisions of the statute which are for his direction and benefit only, it will be valid; as [13 d] 11 Co. 53. b. 2 Cro. 103. Apr. 155. Plo. 64. b. 3 Cr. 96. 9 Co. repugnancy. But the covenant here was holden void as Tamen quare de eo. Co. L. 303. a. b. Co. 8. 133. Plo. 56. a. Cr. El. 691,749. Covenants neglaw. V. in was further resolved in this Ayl. 163. ative void in Moor, 856. It case, 1. When there are in indentures [14] the negative for nonfeas ance; and in for feasance, there the de But it was resolved, though this covenant was void in law, yet the bond was good for the rest of the covenants covenants in agreeable to law. And difference was taken between a bond made void by statute, and by common law; for upon the affirmative the statute of 23 H. 6. if a sheriff will take a bond for a point against that law, and also for a due debt, the whole bond is void for the letter of the statute is so; for a statute is a strict law. But the common law doth divide according to common reason, and having made that void fendant is to plead specially tives, that he hath performed them. to the nega 2. When the negatives are against law, and the affirmative lawful, there he may plead performance generally, if he takes two sureties, one of whom has nothing in the county, or both of whom have not sufficient in the county, or if he takes but one and he has nothing in the county; Cro. Eliz. 808, Clyfton v. Webb-852, Blackbourn v. Michelbourn ;-862, Cotton v. Wale; 10 Co. 99, Beawfage's case. But in these cases, if the bail prove insufficient the sheriff and the court will be answerable to the plaintiff in the action. 9 Mass. 479, Long v. Billings. 12 Mass. 127, Rice & als. v. Hosmer. is to take no tice that the void, the obli A distinction is also made between those cases where the bond or negatives are against law. promise is given to the plaintiff in the action, and those where it is 3. When covegiven to the sheriff or his deputy. The statute speaks only of obligations nants are void given to the sheriff, and does not extend to such as are given to the by the comparty. If it is given to the sheriff, the form of the statute must be mon law, and strictly pursued, but if to the party, it will be good in any other form. others not Thus a promise of an attorney, for the appearance of the defendant, is gation stands not within the statute and will be enforced, if it is made to the plaintiff good for those in the action. 1 T. R. 418, Rogers v. Reeves; but if it is made to the that are good, sheriff or his deputy it will be void. 7 T. R. 105, Fuller v. Prest. but not for the other. Cr. 4 East 568, Sedgworth v. Spicer. And in the case of Benson v. French, Jac. 363, 634, 1 Lev. 98, cited 2 Show. 95, n. (c.) the court gave judgment for the 165, 340, 503, plaintiff on such a promise, though made nominally to the bailiff, because 569. it appeared to have been made for the plaintiff's benefit and with his 11 Co. 27. b. assent. So a bond given to the plaintiff conditioned that a person arrested at his suit shall give security for the debt or render his body to Debt 30. Mod. prison at the return of the writ, is good; but such a bond, if taken by R. 35. 11 Mod. the sheriff in another's name to elude the statute would be void. 2 Mod. 94. See Ley 304, Hall v. Carter. 3 Co. 83. a. Plo. 68. b. [14 a] 79. 8 East 236. This covenant to suffer es capes. 1 Vent. 237. 1 Saund. 66. n. that is against law, lets the rest stand: as is 14 H. 8. fo. 15. (2) (2) The doctrine and distinction here stated have been since frequentis in effect not ly repeated and recognised as law. In 1 Mod. 35, Maleverer v. Redshaw, Twisden J. alluding probably to this case, says, 'I have heard my Lord Hobart say, upon this occasion that because the statute would make sure work and not leave it to exposition what bonds should be taken, therefore it was added that bonds taken in other form should be void. For, said he, the statute is like a tyrant, where he comes he makes all void; but the common law, like a nursing father, makes void only that part where the fault is and preserves the rest.' The same doctrine and distinction are also stated in Com. Dig. Covenant, F., Bac. Abr. Condition, K., and 11 Mod. 93, Hacket v. Tilley, and the case in the text is generally cited as authority. In its application to this particular statute, the doctrine is undoubtedly correct, because the statute prohibits any other condition but for the appearance of the party, and makes the bond void if it contains any other condition whatever, without regard to its inherent legality or illegality. But with regard to obligations generally, the distinction between those made void by statute and those void by common law, may be doubted. In 2 Wils. 351, Collins v. Blantern, Wilmot C. J. says, 'I think there is no difference between things made void by act of parliament and things void by common law.' Where there are dependent covenants they must all share the fate of the principal covenant, and if the principal covenant fails, whether by statute or common law, the subordinate ones fail also. 1 Barn. & Cres. 327, Biddel v. Leeder. 8 Mass. 46, Bliss & al. v. Negus. Thus where the principal contract was by indenture for the buying of an office, and was avoided by statute 5 Edw. 6. c. 16, the bond, which was conditioned for the performance of the covenants in the indenture generally, was held to be wholly void, though some of the covenants were, in themselves, lawful, because they all related to the principal contract. Cro. Eliz. 529, Lee & ux. v. Colehill. So if the contract be entire, and void for part, the plaintiff cannot separate it and recover for the other part. Thus a parol promise, upon an entire consideration, to pay the debt of another, which is void by the statute of frauds, and also to do some other thing which is not within the statute, cannot be separated so as to entitle the plaintiff to recover any part. 7 T. R. 197, Chater v. Becket. But where the instrument contains distinct and independent contracts or covenants, and some of them are void either by common law or statute, the others are valid and may be enforced. Thus the stat. 26 Geo. 3. c. 60, requires the certificate of registry to be recited in all bills of sale of ships, and enacts, in the strongest terms, that if it be omitted the bill or other instrument of sale shall be utterly null and void to ALL intents and purposes.' But yet it has been held that though a bill of sale for transferring the property in a ship by way of mortgage may be void, as such, for want of reciting the certificate of registry, yet the mortgagor may be sued upon his personal covenant, contained in the same instrument, for the repayment of the money lent; that the act did not vacate the whole instrument, but that part of it only which operated as a bill of sale, and that the object of the legislature would be effectually secured by saying that the transfer should be void, without avoiding a collateral covenant for the payment of money contained in the same deed. 8 East, 231, Kerrison v. Cole. See also 8 T. R. 411, Mouys v. Leake. A contract to do a thing prohibited by statute is void, though the statute contains no express enactment to that effect. 3 T. R. 454, Biggs v. Lawrence. 5 Mass. 397, Farrar v. Barton. 4 Dall. 269, Mitchel v Smith. 298, Maybin v. Coulon. 10 Co. 100. b. Yelv. 197, 67. Hereof it followeth, that if the covenant for discharge [14 b] of escapes (ut supra) were good in law, and broken, that then the plaintiff ought to have judgment; and it was Plo. 64. b. a. agreed, that if a man will take a bond to be saved harm- 6.63. 3 Cro. less of suffering one to have escaped, or for enlarging of 190, 200. him out of prison against the law, that these bonds are void; and so are the cases of Dive and Manning in Plo. Bond to save and the case of Thower and Whetstone, Mich. 2. and 3 escapes, diffiPhil. & Mar. Dyer 118; and so is the case of 2 H. 4. fo. b. 9. for the withernam. Hob. 64. b. harmless of cult. Plo. 123. Yelv. 168. 2 But this case is clean otherwise, and was resolved by the whole court, to be lawful for the sheriff to take bond of his under sheriff, to discharge and save him harmless of escapes upon arrests made by himself; for since he transfers his authority unto him, it is reason he take security of him, to perform all justly and faithfully to himself and others, and there is nothing done or intended against law; for there is no lawful permission of any to escape, already done or to be done. As in the other case, where the fault is committed by the party that takes the bond upon confidence of that security; but here the best performance of the covenant is, that no escape be suffered; and the next, that if any be suffered, that then he satisfy the party as is just, that the sheriff take no loss. It was also resolved, that the sheriff in this case was not bound Cr. 391. 2 H. either to give notice to the under sheriff of the escape, or a. ap. 51. to make request for discharge; for the covenant hath no such thing, but binds him to discharge at his peril. I was of opinion, that if the covenant had not against law, for the executions above twenty pounds, that the bar had been insufficient, because it did not plead specially to that negative covenant, that yet if the repli- 129, 199. Dyer cation were nought and assigned no sufficient breach, the 57. a. ap. 199, plaintiff could not have had judgment; for though the ac- 153. Cr. Car. tion were well brought upon the obligation alone, yet 5.10. 13. when it appeareth that the condition was for performance R. 52. c. 9 R. of covenants, now there can be no cause of action 46. p. 199. 2 Cro. 133, 221, without some covenant broken. And observe well Tilly 312. 1 Saund. and Woodlye's case, 7 E. 4. for this purpose, that if it c. Yelv. 71. 4. 9. Co. 5. 24. Saund. 117. Not requisite And where one is been bound to do an to give notice, and act by bond. 1 Saund. 117. n. 2. 118. n. & Co. 124. b. 1 Cro. 300. ap. 76. b. 119. b. 128. Yel. 78. 8 Co. 110. Cr. Car. 285. Plo. 66. post. 280, 54. [14 c] Plo. 86. a. 264. a. ap. 54, 56. 2 Cro. 134. 8 Co. 93. a. doth appear to the court, that the plaintiff hath no cause of action, he shall never have judgment, though he had a verdict for him against one of the defendants (3). (3) In all cases (that of a bond to perform an award excepted) if the defendant pleads a special matter that admits and excuses a nonperformance, the plaintiff need only answer and falsify the special matter alleged; for he that excuses a nonperformance, supposes it; and the plaintiff need not show that which the defendent has supposed and admitted; but if the defendent pleads a performance of the condition, though it be not well pleaded, the plaintiff in his replication must show a breach. 1 Salk. 138, Meredith v. Allen. For the law relative to the assignment of a breach in the replication to a plea of performance, see 2 Chitty 622, and the authorities there cited. A quare impedit will abate if it appear by the plaintiff's own showing that the church is full, of his own presentation. [16] Replevin. Suff. Mo. 678. 3 186. Brownl. In replevin the declaration must assign a place as well as a town; and the place so assigned is traversable. Secus, in trespass. But the omission is cured by pleading over, or verdict. 'JOHN READ brought a replevin against Leonard Hawke Cr. 896. Godb. for taking of his beasts at Ocult, viz. one gelding and 1. R. 176. Br. one mare, to his damage, &c. The defendant demurred 399. Plo. 340. upon the declaration, because there was no place assigned b. 269. a. 4 H. where the taking was, but only a town.' After argument Briefe, 899, 6. 9. b. 12 H. 20. 1 Sid. 9. 7.5. Sid. 10, at the bar, it was adjudged by the court that the declaraac. Pop. 109. tion was nought for the cause aforesaid; for the general 6. Plo. 298. a. precedents of the court, form of declarations in replevins, Hutt. 10. ante 21. a. 38. b. 337. a. 7. Mo. 540. ap. 176. Cr. 166. Tresp. B. 6. Yelv. 148. 16 H. 7. 5, is to assign a place, as well as a town, and in such a case, as well the place as the town is traversable by the avowJac. 594. Yel. ant; wherein the replevin differs from an action of tres3. 205. 9 H. 7. pass, wherein the plaintiff may assign his trespass only in ac. 7 H. 4.27. one town, and if he do assign a place, the defendant may a. 8 H. 6. 34. b. plead at another place, without traversing the place asTrin. 10. Jac. signed by the plaintiff; and then the plaintiff may make a new assignment: and the reason is, because the replevin sign a place as is an action of more certainty, and must of necessity con a. 19 H. 6. 49. 1 H. 7. 11. Rot. 2508. Re plevin must as well as a town. 2 H. 6. 14. a. |