1842.

Richmond

v.

Standclift

et al.

A contract, which is a fraud on third persons, may, on that WINDHAM, February, account, be void as between the parties. On that principle the decision was made in the case of Jackson v. Duchaire, 3 Term R. 551, relied on in the agument; and on the same principle the decisions have been uniform that, if a creditor makes a composition with his debtor to receive a less sum than is due, and the friend of the debtor is induced to be surety for the sum agreed to be received, any secret agreement between the creditor and the debtor, that the latter shall pay any further sum, or any promissory note, or other security given for that purpose, is void between the parties, as a fraud upon that friend. The cases under this head are numerous. The case at bar is not of that character. Here was no valid or legal agreement between the parties different from the one which appeared on the note.

It is also a principle of law that the concealment from the surety of any of the material terms of the contract, which increases the risk he is under, or varies or increases his responsibility, avoids the engagement of the surety. The case of Pidcock v. Bishop, 3 Barn. & Cres. 605, was decided on this principle. In that case the object of the guarantor was that Tickell should have iron at the market price, to enable him to set up business, out of the avails of which, it was expected he would pay for the iron, and thus liberate his guarantor; whereas, by the secret agreement made by him, he was not to have the iron at the market price, but was to pay ten shilling extra per ton, on old debt, contracted before he became a bankrupt and which was probably proved and discharged under the commission. This agreement was a direct fraud on the surety, increased his risk and responsibility, and abstracted the fund, or a part of it, which should have been applied in discharge of his liability. The surety was therefore not liable on his engagement.

The agree

But the case at bar is not of that character. ment to pay the extra three per cent. was not a valid or legal agreement, neither increased the risk or responsibility of the surety, nor abstracted any of the funds furnished by the creditor to the principal, was void as against the provisions of the statute, and was never attempted to be enforced or performed, but was at most, what would be considered, by some, as an honorary undertaking, and nothing more than a

WINDHAM, gratuitous promise, not binding, in law, or in foro consci

February, 1842.

Bridges

V.

Perry.

entiæ.

Our present statute does not make a usurious contract void, any further than for the sum received, or agreed to be received, above the legal interest. There was no evidence, in this case, which, on any principle, should prevent the plaintiff from recovering of the defendants the amount of the note. The judgment of the county court is therefore affirmed.

WALES A. BRIDGES V. GATES PERRY, Jr.

Officers, attaching property on mesne process, are not liable for the property, if it is taken from them without any want of ordinary care on their part.

Officers, under such circumstances, are only liable for the same degree of diligence in keeping the property as other bailees for pay.

CASE against the defendant, as sheriff of Windham county, for the neglect of his deputy, in not safely keeping and returning, to be sold on execution, seven cows, attached on a suit in plaintiff's favor against one Dexter.

Plea, general issue, and trial by jury.

On the trial in the county court, the plaintiff introduced testimony tending to prove the allegations in his declaration.

The defendant offered testimony to show that when the defendant's deputy attached the cows, he delivered them, for safe keeping, to one Underwood, the plaintiff's agent, who ordered the attachment made, being present and making no objection; that Underwood put the cows into a pasture with a good and sufficient fence, and, in a few days afterwards, Dexter, the owner of the cows, without the knowledge or consent of defendant, his deputy, or Underwood, took down the fence of said pasture, drove the cows out, and put them into his own pasture, and gave such notice that other creditors of said Dexter attached and held said cows.

To the admission of this testimony the plaintiff objected, and it was rejected by the court.

The jury returned a verdict for the plaintiff, and the de- WINDHAM, fendant excepted.

A. Keyes and R. Tyler for defendant.

The county court erred in rejecting the testimony offered in defence.

I. The plaintiff consented to the bailment, and took the risk upon himself.

II. If not so, and the sheriff would be liable at all events on final process, except for the act of God and the public enemy, yet a different rule prevails in mesne process. In such case the sheriff is holden only to exercise ordinary care and diligence. May v. Proby, Cro. Jac. 419. S. C. Bulstr. 198. Hammond's Nisi Prius, 348. Long v. Billings, 9 Mass. R. 487. Nye v. Smith, 11 Mass. R. 188. Shackford v. Goodwin, 13 Mass. R. 187.

more, 3 Stark. N. P. C. 168. 5 Taunt. R. 225.

v. Whit

Run

III. That the sheriff, in mesne process, is bailee for debtor and creditor, and holden to exercise only ordinary care and diligence, has been directly decided in New York and New Hampshire. Jenner v. Joliff, 9 Johns. R. 381. S. C. 6 Johns. R. 9. Cilley v. Jenness, 2 N. H. R. 87. lett v. Bell, 5 N. H. R. 433. Story's Bailments, 96. IV. The cases in Massachusetts of Phelps v. Bridge, Tyler v. Ulmer, and Congdon v. Cooper, are cases of gross neglect, and do not apply; for the present is not a case of ailure of receiptors, where the property was left in the hands of the debtor; but where the property was in the keeping of the sheriff, in the ordinary way, and tortiously taken by the debtor, without fault in the sheriff.

D. Kellogg, for plaintiff.

I. The defendant's deputy, by his return on the writ, bound himself to levy the plaintiff's execution upon the property attached, or respond to the plaintiff for the value of the property so attached. He was, at all events, responsible for the safe keeping of the property. Phillips et al. v. Bridge, 11 Mass. 247. Tyler v. Ulmer, 12 Mass. 163. Congdon v. Cooper, 15 Mass. 10.

II. If we are correct in the foregoing position, it necessarily follows that the testimony offered by the defendant fur

February, 1842.

Bridges

v.

Perry.

WINDHAM, nished no defence to the suit, and consequently was properly excluded.

February, 1842.

Bridges

v.

Perry.

The opinion of the court was delivered by

REDFIELD, J. — In the trial of this case, the court below, having rejected the evidence offered by the defendant, to show that he was guilty of no negligence in keeping the property, without submitting it to the consideration of the jury, who were the proper judges of that question, did decide the case on the broad ground, that, even if that were shown, it would amount to no defence. This, then, is the only question to be here revised. This property was attached upon mesne process. We will examine the cases urged upon our consideration, and see how far they go to determine the extent of the liability of sheriffs for keeping property so situated, and how far they are so consistent with principles as to be worthy of reliance.

The case of Jenner v. Joliff, 6 Johns. 9, is that of an action of trover against the creditor, who seized property by virtue of process in his favor against the plaintiff, issuing out of the king's bench in the Province of Lower Canada. This attachment (or seizure, as they call it,) being made by a proper officer there, and the loss complained of happening without the fault of the officer, but through stress of weather, it was held this action will not lie against the creditor. The same case comes up again, 9 Johns. 381, in the form of trespass on the case. Here it was claimed the bailiff, having custody of the property, was guilty of negligence in keeping it, and this through the advice of the defendant, the creditor, whereby great loss accrued. The court held that if this were made out in proof, both the creditor and officer were liable. This was making the officer liable for the want of ordinary care and diligence, and this degree of liability no one doubts, whatever might be thought of the propriety of trying a case of that kind, which occurred at Quebec, and where the duty of the sheriff is enforced, by rule of court, by the law of some other forum.

The case of Cilley v. Jenness, 2 N. H. R. 87, turns mainly upon the question of the liability of perishable property to attachment, and the extent of the liability of the

sheriff for the keeping of such property. It really renders us WINDHAM, no aid in regard to the present case.

February, 1842.

The case of Phillips v. Bridges, 11 Mass. R. 242, decides Bridges

that where the sheriff bails the property attached to a receiptman, he is liable for the acts of such servant, and of all to whom he entrusts the property. This is a very salutary and reasonable rule, and one which it is not easy to gainsay, or contradict. What the judge, in delivering the opinion of the court, says in regard to the general duties and liabilities of sheriffs, it is not necessary here to repeat. The case of Tyler v. Ulmer, 12 Mass. R. 163, turned upon the same point. Congdon v. Cooper, 15 Mass. R. 10, decides that, in that case, the facts did not show that the town of Eastport, being in the hands of the public enemy, had any tendency to impede the sheriff in the performance of his duty. The case of Runlet v. Bell, 5 N. H. R. 433, in effect, decides that if the sheriff attach goods on mesne process, and bail them to some person, who is at the time responsible, and who executes his receipt for them, this will exonerate the sheriff. That is treating this voluntary bailment the same as a compulsory one, by writ of replevin. But we think the cases are widely different. In the case of a voluntary bailment by the sheriff, he must be considered as responsible for the acts of the bailee, as his servant, to the full extent. Thus stand the decided cases which have been presented to the court. And it is needless to say they do not afford much aid in determining the question before us. We are left to decide it much as we judge the general principles of the law of bailment, and the kindred analogies, require.

So far as the general principles of the law of bailment are concerned, there is not, at the present day, perhaps, any very striking reason to be urged why sheriffs should be laid under any higher degree of obligation, in regard to keeping property, than other bailees for pay, i. e. ordinary care and diligence. But early in the history of the common law it was decided that, in regard to property taken on final process, (and in England it is taken on no other ordinary process,) the officer making the levy should be liable for its safe keeping and forth coming, in all cases, unless hindered by public force, or inevitable accident, and that he could not excuse himself by showing a rescue even. Mildmay v. Smith, 2 Saun

D.

Perry.