agreed to the dictinction taken by Damport. Antea, p. 23. Poph. 165.
Reynel v. Elworthy, 1 N.C. 143, 1 Mart. 143 (1793)
1793
·
United States Circuit Court for the District of North Carolina
1 N.C. 143, 1 Mart. 143
*Sir George Reynel vs. Elworthy.
Trin. 2 Car.
SIR George Reynel had Elworthy in execution, he being a Marshal: and on an habeas corpus suffered him to go in the country, and took an obligation of him to be a true prisoner, and he had a keeper with him as far as Charing-Cross; and afterwards he parted from his keeper, which was adjudged to be an escape against Sir George, whereupon Sir George brought debt on the said obligation against *144Elworthy, who pleaded the statute of 23 H. 6. c. 10 p. 147, and said the obligation was made for ease, whereupon Sir George took issue, &c. it was found for the plaintiff.
Hedlev, Serj. e contra:
This case does not differ from Manningham's case, Com. 60, except that there the obligation was given to a sheriff, and here it is to a marshall. This statute consists of two parts; and there is major ratio, that the marshal should be within the statute than the sheriff. For the sheriff has to carry about his prisoner afar, and the marshall has only to keep him in prison. The preamble has the words keeper of prisons, and such is the marshal: The proviso is: the said sheriffs, ministers, or officers, and the intention of the statute was to prevent gaolers from giving ease to their prisoners, which is an inducement to them to withold the payment of their debts.
Damport, Serj. e contra.
I conclude that an obligation made for favour or ease to the marshal is void: although it be under colour of pretence to be a true prisoner. But it is lawful to take an obligation from a prisoner to be a true prisoner to the marshal: and the sheriff, notwithstanding the statute, may take an obligation for a true debt. If the sheriff has an execution against a man who is indebted to him, if he takes an obligation from him that he shall pay his debt and that he shall be a true prisoner, and it is for ease and favour, the illegal consideration shall make the whole obligation void. And tho’ the obligation be made to the sheriff without constraint, and to a good end, as it does not pursue the statute, it shall be void; as appears in 10 Rep. 99, Skinner and Sir George Reynel. H. 17. Jac. rot. 1276. vel 576. B. R. A prisoner made an obligation to Sir George Reynel, for arrest-money; and it was held good. In Sir Thomas Perriam and Rodes' case, H. 19. Jac. rot. 1201, this very point was adjudged.
Jermyn. I grant that every obligation which is not within the words (as our case is) is not within the meaning. Bewfage's case *and 21. H. 7. 16. 17. Where it was held that if a marshal brings one here, who is utlagatus to sue error, he may charge for his labour.