Denson v. Sledge, 13 N.C. 136, 2 Dev. 136 (1829)

June 1829 · Supreme Court of North Carolina

13 N.C. 136, 2 Dev. 136

June, 1829.

Jourdan Denson v. Joel Sledge.

From Franklin.

A promise made to a Sheriff to indemnify him For doing an unlawful act, or for omitting to perform his official duty is void. The rule however is subject to the exception, that the act be not one which is apparently lawful, in furtherance of the Sheriff’s duty.

Hence a promise to indemnify a Sheriff for neglecting to levy a fi. fa. or for postponing its execution, is bad. But an indemnity to him for levying a fi. fa. against A, upon goods in the possession of B, is valid.

Where the Sheriff was a surety to the principal Defendant and a party to the writ, which for that cause improvidently issued to him, it ■was held that the promise of a stranger to pay the debt on the return day of the writ, if the Sheriff would not proceed under it, was void, although-the writ improperly issued to the Sheriff, and he was a surety for the debt.

The act of 1777, sec. 8, (üev. ch. 331) and the statute 23d Hen. 6, ch. 10, apply only to bonds given by persons in the ward of the Sheriff, not to bonds given upon writs of fi. fa. and the latter are good unless given upon a consideration bad at common law.

The act of 1807, (Hev. ch. 731) authorizing Sheriffs to take forthcoming bonds, does not interfere with the rules of the common law-touching the duty of a Sheriff; it is merely permissive, and no agreement can be enforced under it, which is not strictly in pursuance of it.

Assumpsit upon a special contract. On the trial before his honor Judge Norwood, on the last Fall Circuit, the case was, that the Plaintiff being the Sheriff of Franklin, had in his hands sundry writs of Fieri Facias, against one Jeffreys. The Defendant, in consideration that the Plaintiff would suspend proceedings thereon, and wait with Jeffreys, promised that he, the Defendant, would pay the amount due upon the judgments. Three judgments and executions against Jeffreys were produced — and it appeared that the Plaintiff was a party to two of them, being the surety of Jeffreys, and sued iu the samo action with him.

The Jury, under the directions of his Honor, returned a verdict in favor of the Plaintiff fin* the anbunt of the judgments, and the Defendant appealed.

jBadger & W. H. Haywood for the Defendant, argued—

1st. That forbearance was only a good consideration, when moving from the party entitled to receive the debt forborne, or from his authorized agent. The promise of any other person'to forbear, being merely officious or insufficient, cannot support a promise to pay that person, and if it enure to the benefit of any one, it must be to that of the creditor. — (Harvey v. Gibbons, 2 Lev. 161 — Jtferot v. Wallace, 3 Term Rep. 17.)

The Sheriff is not the agent of the creditor, but the servant of the law — or, at most, he is the agent of the Plaintiff, to do exactly that which the writ commands. Hence, if in a fi.fa. the debtor pay the Sheriff the money, he is discharged, and the Plaintiff must look to the Sheriff — because in this case, the Sheriff pursues the directions of his writ. But in a ca. sa. a payment to the Sheriff is no discharge — the receipt not being in virtue of the writ — (Slackford v. Austin, 14 East, 468 — Rook v. Wilmot, Cro. Eli». 209 — Taylor v. Bonk, 2 Lev. 203— Ibid. 2 Mod. 214.)

The Plaintiff, therefore, had no power to grant indulgence, and his mere delay to act — a delay to which he was not bound — formed no consideration.

2d. That the consideration was the Sheriff’s agreement to forbear doing an act which bis duty required of him, and therefore was contrary to the policy of the law, and void, (Chitty on Contracts, 221, 222.) Such agreements, it was contended, necessarily tended to the injury of the creditor, by turning him upon the Sheriff, and also to the injury of the debtor, by exposing him to the oppression of the Sheriff, either from motives of caprice or cupidity. It was, in effect, an agreement to indemnify the Sheriff for a breach of duty, which was void. (Plow. 64 — Hob, 14 — Blackett y, Crissop, 1 id. JSai/,278.)

The Counsel distinguished this case from forthcoming bonds, which the Sheriff was authorized, by the act of 1807, (Rev. ch. 7SI,) to take, and from bonds given to indemnify the Sheriff against selling goods in the possession of B, on a Ji.fti. against A. contending, that the act of 1807 authorized forth coming bonds, as an exception to the rule of the common law, which must be confined to the case of a levy upon slaves or cattle, and must be strictly pursued. And as to the bonds of indemnity against an action of trespass, they contended that the rule was that an indemnity to the Sheriff to do an act in furtherance of the writ was good, but not when it was to do, or omit to do, an act which tended to defeat it.

Seaivell & Hillman for the Plaintiff, argued

1 st. That the actof 1777, ch. 118,sec. 8, (Rev. ch. 331) relatesonly to persons in custody, and is substantially the same as the statute of 23d Henry, ch. 10, and should receive the same construction. That statute has been held not to extend to bonds taken from any except persons in ward of the Sheriff. The reason is, that in writs of ca. sa. it is the coercion of the Defendant’s person which is to procure payment, and to lessen this coercion is a plain violation of the Plaintiff’s remedy. In writs of fieri facias, the rule is different. The teste of the writ binds the Defendant’s property, and no injury arises to the Plaintiff from a delay on the part of the Sheriff. Suppose the Plaintiff had paid the money to the creditors, and taken the Defendant’s promise to indemnify him — would there have been any injury to the creditor ? His having relied upon the Defendant’s promise as well entities him to recover, as the payment of the money in the case supposed. Beaufiages’ case, (10 Rep. 99,) is a case where the Sheriff who had a fi. fia. against the Defendant, took a bond for the payment of the money into Court at the return of the writ — upon the statute 23d Henry 6, ch. 10, being objected, it was held good. ■ The case of Dawson, Sheriff of B. against Barman, cited in tlse report of that .:ase, wa-debt upon a bond — th. Defend? Í. pleaded statute of 23d Henry 6, and sho.w-d that e.-e. 1C. recovered debt and damages against bina, and sued a fi. fa. directed to the Sheriff of 1$. and that lie made the bond to the Plaintiff for the execution, and that the bond was void by the said act: upon w hieh the Plaintiff demurred j and it was resolved, first, that the said bond was not within the said statute, because the statute extends only to such bonds which any in his ward makes to him. Secondly, that the bond was not void by the common law. — Whereupon the Plaintiff had judgment. The like judgment was given inter Burwey and Ket, upon bond taken by the Sheriff pro solutione pecunias debitas domince Reginas, upon an extent out of the Exchequer, flbid, page 100 a, 100 6.) The same law holds of assumpsit.

If the bond or promise of the Defendant in execution to the Sheriff, to pay the money, be good under the sta- , tote and at common law, surely the bond or promise, of a third person to do the same thing cannot be void, upon the ground that it is contrary to Luv.

It is not every unlawful act of the Sheriff, that will render a contract to indemnify him for the doing of it, unlawful It is unlawful for the Sheriff to levy upon the property of one man to satisfy the debt of another. Yet a promise to indemnify him for so doing will support an assumpsit. (Arundell v. Gardiner, Cro. .Tac. 652.)

The question here is, not whether the Sheriff could have defended himself against (he Plaintiff in the executions, if they had sued him for not making (heir money, but whether the promise is void. (Blackett v. Crissop, 1 Lord Ray. 27 8.)

2d!y. Another objection is, that the promise in this case is made for forbearance, and that the time of forbearance is indefinite and uncertain, and therefore is void in law, and does not afford a sufficient consideration for an assumpsit to pay, on the part of the Defendant. Id cerium est, quod cerium reddi potest. Tiie promise in this case is made to the Sheriff, when about to levy upon the property of Jeffreys. It is therefore substantially a promise by Defendant to the Sheriff, that if he would not jevy yie execution on Jeffreys’ property, he, the Defendant, would pay the money due thereon. When, was he to pay ? When the Sheriff would be liable. When would that be? At Ihe return of the execution. Beyond that time, the Sheriff would not have it in his power to indulge, for lie would then be subject to amercement, and would then incur the liability to pay the whole amount, provided the Defendant in the execution should, by any means become unable to pay. It w as therefore a promise, made under an agreement to forbear until the return day, which was for a certain, definite and reasonable time, and such as forms a good .consideration in law.— Although the stipulation to forbear was not expressly made for that time, yet the circumstances in the caso show, that that must have been the understanding of both parties.

3d. But if the promise to the Plaintiff, as Sheriff, be void, still the Plaintiff was the surety in two of the judgments, and the execution being improperly in bis hands, it is fair to conclude that be had the controul of them, and that the promise made to him was made to him as a surety, not to indemnify him for a breach of his official duty, but to save him harmless as a surety. In this view of the case, there was full power to grant the delay,, and no rule of policy forbids that the Plaintiff should recover.

Toomer, Judge.

The Sheriff is the officer constituted by law to execute the process of the Court. It is his duty to execute it with due diligence and reasonable promptitude. It is laid down in Bac. Mr. (Sheriff JST.) and the position has been recognized by this Court, in the case of Lindsay’s Ex’rs. v. Armfield, (3 Hawks, 548,) that he is bound to execute all process which comes to bis hands with the utmost expedition, or as soon after receiving it, as the nature of the case will admit.

The Plaintiff being Sheriff of Franklin County, had in his hands certain executions, and the Defendant, in consideration that the Plaintiff would forbear to levy those executions, and would wait for the money due thereon, promised to indemnify him. The Plaintiff alleges, the forbearance took place, and he has sustained damage thereby j and now asks the aid of the Court in obtaining indemnity for disobeying its process, and violating his duty. This is the substance of the transaction, whatever colouring ingenuity may have given it. The consideration was an omission, by a public officer, to perform the duties of his office $ the promise of the Defendant was to induce him to omit the performance of that duty.

This consideration is illegal, and (lie promise void, being repugnant to the general policy of the common law. An agreement to induce a public officer to omit the performance of his duty, is void. (Chitty on Contracts, 221.) A contract to indemnify a Sheriff for doing that which he ought to do, is good; a contract to indemnify him for doing that which he ought not to do, is void. (Blackett v. Crissop, 1 Ld. Ray. 278—Plowden, 64.) The agreement of the Plaintiff to forbear making the levy — to suspend proceedings on the process, and wait for the money due thereon, was in violation of his duty, and contrary to law. The contract implies a power and ability to levy the execution, which it was his duty to do ; but which he omitted, at the instance and request of the Defendant, and under the inducement of a.promise of indemnity.

The act of 1807, (Rev. ch. 731,) authorizes the officer, when he has levied an execution, to permit the properly so levied on to remain with the possessor; the officer taking bond for the forthcoming thereof, to answer the process •, and he remaining, in all respects, liable to the claims of the Plaintiff, as before the enaction of the law. This act is predicated upon the common law principles recognised by this decision. It' sanctions the positions, that it is the duty of the Sheriff to execute final process expeditiously; that when lie seizes property under an execution, and by virtue of his office, he must take it into the custody of the law — he must, be its keeper; and that any agreement Ur omit the performance of his duty by postponing tfie period of levy, or to permit the Defendant in the execution to retain the possession, and enjoy the use of the property levied on, after the seizure, would, at common law, be illegal and void. The Sheriff can now, by taking bond, and pursuing the directions of this act, permit the property levied on to remain with the person in whose possession it was found, at the time of the levy. The bond would have been void before the passage of this act, but is now' rendered obligatory. The act is permissive in its provisions, and all the former liabilities of the officer still continue. The mischiefs intended to be remedied were the inconveniences to which the possessor of the property levied on was exposed, by-being deprived of its use until the day of sale, and of being subjected to the expense of its being kept in cus-todia legis — inconveniences which were particularly oppressive to the unfortunate debtor, when slaves were the subjects of the levy. This act docs not interfere with the common law rule, prescribing the duty of the Sheriff in making the levy; neither does it authorise any postponement thereof; nor does it sanction any stipulation of forbearance in discharge of this part of his duty. No agreement can be enforced under this act, which is not strictly in pursuance thereof; this contract is not within its purview.

The three executions which are comprehended by the agreement that is the subject matter of this controversy, were against one Wm. Jeffreys; two of them were against Jeffreys, the principal debtor, and embraced others, who ''’crcliis.',.'í’etU'S»oa{íoPw>í’;:»;.>a:: i he presen! Plaintiff, •was a paríy Defendant, as tiVes^j <y i>? Jeffreys, in cacii of the two latter executions. It bus been said, these two exe-cutious issued irregularly to the Sheriff, as he was a party Defendant in each ; and they imparted no power to him, and he could exercise no authority ünder them. The Sheriff, in his ministerial capacity, is hound to execute all process issuing to him from a Court of competent jurisdiction. If the Court possess jurisdiction, the officer is hound to obey the mandate of the writ, although it may have improvidently issued. It is true, the ministerial office of the Coroner is to act as the Sheriff’s substitute. If just exception can be taken to the Sheriff, as when he is interested in the suit, or of kindred to either of the parties, then the process should he awarded to the Coroner.—(1 Bl. Com. 314, 349.) Our acts of 1777 and 1779 only provide for the issuing of process to the Coroner, when títere is no person properly qualified to act as Sheriff in the County. The Plaintiff in each of these executions was willing to confide in the Sheriff j the Court had jurisdiction, and issued the process to him ; he received and recognised the writs in Iiis official character, and although they may have improvidently issued, he was bound to execute them. — (M’Auley’s case, Cro. Jac. 299—Bull v. Steward, 1 Wils. 255—1 Str. 509,)

It has been intimated, that this is a promise by the Defendant to pay the debts due on the executions, and not an undertaking to indemnify the Sheriff. I perceive no difference $ they are in principle the same. The consideration was the omission of the officer to discharge his duty, and is illegal. The promise was an inducement to the Sheriff to, omit that which the process commanded, and the law required him to do, and is void.

Beaufage’s case (10 Coke Rep. 99, b.) has been much relied on by Plaintiff’s Counsel. A writ of fieri facias had issued to the Sheriff, and he took from the Defendant in the execution, a bond f#r the payment of the money into Court, at the return of the writ. In declaring , , _ . , , ... on a bond, it is not necessary to aver any consideration. jt |s true, that if iCbe given on an illegal consideration, the obligor can show the illegality and avoid the obligation. But it does not appear, that there was any thing illegal in the transaction ; there was no attempt to show illegality. There was no stipulation or undertaking on the part of the Sheriff to omit his duty, or to forbear its performance ; no agreement to postpone the making of a levy, or to suspend the proceedings under the execution. The taking of tfie bond was not disadvantageous to the Plaintiff; it furnished additional security for the payment of the debt, without interfering with the execution of the process, or the duty of the officer, and under such circumstances, was not contrary to the policy of the law. The case does not state what was the inducement of the obligor for executing the bond ; or whether the bond was taken by the Sheriff, with the knowledge and consent, and under the direction of the Plaintiff in the execution. There was no attempt however to show any illegality in the consideration. The doubt entertained and expressed by the case was, whether the bond was not void by the statute of 23 Henry 6. But it was decided, that the statute only extended to bonds taken from persons in the ward of the Sheriff. The case of Dawson, Sheriff of B. v. Burman, referred to in Beauf age’s case, is of the like character, and was decided upon the same principles.

The case now before the Court is an action of assump-sit, on a parol promise. It was necessary to set forth in the declaration the consideration upon which the promise was founded. The Sheriff by his agreement tied his own hands ; he stipulated to omit the performance of his duty | he undertook that he would not be quickened to action, either by the mandate of the law, or the request of the Plaintiffs in the executions. These stipulations 'were the consideration of the promise j the consideration is illegal, and the promise void. It is not contended by Defendant’s Counsel, that cither statute, 23 Henry 6, or our act of 1777, eh. 18, sec. 8, has any thing to do with the case hefore the Court; they Ay refer to persons ia the ward or custody of the Sheriff. ’

Hall, Judge.

Perhaps in the present case, the end of justice would be answered by affirming the judgment of the. Superior Court. But if tiie general policy and justice of the country is concerned in the precedent, which such a judgment would establish, it outfit to be examined.

It is universally true, that all contracts and promises, which have a tendency to impair the administration ofjus-tice, are void, (1 Com. on Contr. 28—1 Fonb. 227—Turner v. Vaughan, 2 Wils. 339—3 Term Rep. 17—Plowden 64—Blackett v. Crissop, 1 Ld Ray. 278—Hob. 14—5 Mass. Rep. 385.) Many more authorities' might be cited, in support of this general position.

To what did the promise of the Defendant tend in the present case. ? Certainly to a laxity of official duty in the Plaintiff. The consideration of the promise was, that the Plaintiff should suspend proceedings on the executions, and wait with the Defendant for the money due.It is asked, why returns upon those executions were not made to Court as usual; the answer is, that they were suspended by the promise, of course the Plaintiffs in them were kept out of their money in consequence of the promise, and therefore the promise became an impediment in the administration of justice, and on that account should be considered void, but not on account of the Defendant, for he is entitled to no favor.

Henderson, Chief-Justice.

It isimpossible to support this action, taking it -as a promise to indemnify the Plaintiff, the Sheriff, for forbearing to levy the executions, or a promise to pay their amount at Court. x In either case, without the promise of forbearance on the part of the Sheriff, they a/re mere nude fads, and will not support an action ; and taken with the consideration e¡t¡10r pt.()mise is voi/tl, for the genera! rule is, that no promise, and more especially one to an officer of the law, to indemnify him 'for doing a wrongful or unlawful act, -is binding; for such acts cannot form the consideration of a lawful promise. This is the general rule, and I am satisfied that this case does not come within any exception. Exceptions there are, for we know that there may be an indemnity given, for acts which are in the abstract wrongful. As if a sheriff has in his hands an execution against A, at the suit of B, and B points out property in the possession of C, as belonging to A, and requests the Sheriff to levy on it, and gives him an indemnity for so doing, this promise is good, and if C sues the Sheriff for seizing the property, alleging it to be his, and not A’s, and recovers of the Sheriff on that ground, B is answerable to the Sheriff, upon his promise of indemnity. Yet this act in the Sheriff is wrongful, for he had no authority under the execution against the property of A, to seize the property of C. The execution warranted no such seizure, and he stands exposed as a trespasser to the action of C. The Counsel for the Defendant contended, that the rule is, that if the act would be lawful, taking the facts to he as represented by the person who gives the indemnity, then the indemnity is good. But if upon those facts taking them to be true, the "act would be unlawful, then the indemnity is nof good; as in tiie case put, if the goods were really the property of A, as B represented them to be, then the seizure would be lawful and the indemnity good. But I think that is not the rule. For change the case thus ; there is property in the possession of A, and C informs the Sheriff that it is not the property of A, but his (C’s) property, and indemnifies the Sheriff for omitting to levy on it, and upon a return of nulla bona, B, the Plaintiff in the execution, recovers of the Sheriff by showing that it was the pro-pei'ty of A, and was liable to be taken on bis execution. it is admitted I believe on all hands, that this indemnity is bad, fop an officer cannot be indemnified for omitting to do Ids duty. The rule I take to be this ; the Sheriff or other officer may be indemnified for doing an act, apparently lawful, in furtherance of his duty, and in giving a character to the act, facts represented by the person who gives the indemnity, are to be taken as true, but in no case can fie be indemnified for omitting to do, what the event proved to have been his duty to have done. As in the case last put, if the goods were the property of A, and therefore subject to B’s executions, the Sheriff could not be indemnified for omitting to levy upon them, and for returning nulla bona. That is, the Sheriff may under the circumstances before mentioned, be indemnified for doing an act, which turns out to be unlawful. But in no case, can he be indemnified for omitting to do what it was bis duty to have done. In the first case, it is in furtherance of the precept of his writ, and to obtain the end designed by it. In the latter, it tends to thwart the object, and by a series of indemnities ad infinitum, the payment of the money to the rreditor might be indefinitely postponed. I have examined a written argument filed by one of the Counsel for the Plaintiff. I think that the authorities relied on do not impugn the grounds of this decision, but tend rather to strengthen them. The principal case relied on is Beaufages’ case. (10 Rep. 99.)—That was a case where the Sheriff had taken a bond of the Defendant in a fi.fa. to pay the money into Court, at the return of the writ. It was held, that the bond was not void by 23d Henry 6, ch. 10, or by the common law. In that case, there was no agreement to forbear, as the consideration of the bond. It does not appear, that the Sheriff either omitted to perform, or promised to omit to perform any part of his duty, as the consideration of the bond. That bond was therefore only accumulative, the Sheriff being left free to perform his duty. And the bond being good without any consideration, and not having a bad one, was supported. The case of Lenthall v. Cooke, (1 Saun. 161,) I think is much at point. A bond taken by a Sheriff of a prisoner, that he will be a true prisoner, is good if not taken for ease and favor ; that is, if its consideration is not any relaxation of his duty as Sheriff, it is good. But if it is taken for ease and favor, the bond is bad. Apply that rule to the present case, and it determines the question. I give no opinion on the other points.

Per. Curiam. — Let the judgment below be reversed, and a new trial granted.