Bradford v. Consaulus , 3 Cow. 128 ( 1824 )

Curia,

per Savage, Ch. J.

By the statute (l R. L: 429,) it is the duty of the Sheriff to permit any prisoner who shall be in his custody on civil process only, to go at large within the limits, &c. on giving a bond with sureties. It follows, that if a prisoner be Confined on civil and criminal process both,' the Sheriff cannot take such a bond. If the* imprisonment be inconsistent with the liberties of the limits, and a bond should be taken, it would be void.

The enjoyment of the liberties of the limits by the prisoner is, then, the consideration of the bond ; and when the' consideration fails, the obligation must be at an end. The bond is taken for the indemnity of the Sheriff only; but when the prisoner is iff close confinement, the Sheriff wants no indemnity. If he should desire it, lie cannof take it. The bond, in this case, was valid when taken ; but,1 by subsequent circumstances, the consideration failed.' Shall the obligation, then, continué ? The prisoner was" placed in a situation which rendered the taking a bond fronf him unlawful. Shall the Sheriff then be, permitted to retain a security which it Would be unlawful for him to take ? Or shall the prévious obligation be suspended ? If so, it must remain supended till the prisoner is discharged from the’ criminal accusation. The Sheriff isauthorized to commit any prisoner upon the limits on a bond, if he shall discover that his bail is insufficient. Suppose the Sheriff, in this case, had committed Quackenbush for that cáuse, would the bail1 be boldeu for an escape ? Clearly not. It seefns to' me, therefore, that the enjoyment of the limits by the prisónér, is not Only the consideration, but the condition of the bail’s liability. This seems to follow from the language of the bond itself- The condition is, “ that the prisoner shall remain a true and faithful prisoner within the liberties of the said gaol; and shall not, at any time, oí in any wise, escape oi go without the limits of the said liberties, until, &c. But if, af* ter taking the bond, the Sheriff does not choose to permit the prisoner the use of such limits, surely neither law nor justice should permit him to hold the sureties liable for an escape from the walls of the prison. In my opinion, the Court below erred, and their judgment should be reversed.'

Judgment of reversal.